Davis and Repatriation Commission
[2003] AATA 537
•10 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 537
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/195
VETERANS' APPEALS DIVISION ) Re HENRY THOMAS DAVIS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date10 June 2003
PlaceSydney
Decision The Tribunal determines that:
· the decision under review is varied in so far as the psychiatric condition includes both the Applicant suffering from a generalised anxiety disorder, and a personality disorder; and
· the conditions of generalised anxiety disorder, personality disorder and irritable bowel disorder are not war-caused disabilities; and
· the conditions of cervical spondylosis and gastro-oesophageal reflux disease are not before the Tribunal, for want of jurisdiction.
· In respect of that part of the decision relating to the condition of lumbar spondylosis, the decision is set aside, and in substitution, therefor is a decision that :
(a) The condition of lumbar spondylosis is determined to be war-caused; and
(b) The matter, in this regard, be remitted to the Respondent for assessment; and
(c) The date of effect for payment of pension in this regard is 3 June 1998.
[SGD] Dr J D Campbell Member
CATCHWORDS
VETERANS' ENTITLEMENTS - operational service - multiple conditions claimed - entitlement - jurisdictional matters
Veterans' Entitlements Act 1986 - sections 9, 120, 120A, 120B, 175
Statement of Principles
SoP Instrument No 143 of 95 as amended by Instrument No 13 of 1997
SoP Instrument No 1 of 2000 concerning Anxiety Disorder
SoP Instrument No 48 of 1994 as amended by Instrument No 275 of 1995 concerning Generalised Anxiety Disorder
SoP Instrument No 3 of 1996 concerning Irritable Bowel Disorder
REASONS FOR DECISION
June 2003 Dr J D Campbell, Member 1. In this matter Mr Henry Davis ("the Applicant") seeks a review of the decision of the Repatriation Commission ("the Respondent") dated 11 March 1999 which was affirmed by the Veterans' Review Board ("VRB") on 13 December 2000. The decision under review refused the Applicant's claims in respect of conditions diagnosed as lumbar spondylosis, generalised anxiety disorder and irritable bowel disorder, on the ground that these conditions were not war-caused.
2. A hearing was held before the Tribunal on 11 December 2002 at which the Applicant was represented by Mr Vincent of Counsel. The Respondent was represented by Mr Marsh, an advocate from the Department of Veterans' Affairs. Mr Davis presented oral evidence at the hearing.
3. The following material was introduced into evidence before the Tribunal:
Exhibit
Description
Date
T1-T35
pp1-186Documents prepared pursuant to section 37 of the Administration Appeals Tribunal Act 1975
A1
Statement from Mr Davis
15 February 2002
A2
Medical report from Dr Dinnen
11 January 2002
A3
Medical report from Dr Dinnen
28 May 2002
A4
Medical report from Professor Ehrlich
18 June 2002
A5
Applicant's Statement of Facts and Contentions
22 February 2002
R1
Medical report from Dr Shand
11 July 2001
R2
Report from WriteWay Research
1 November 2001
R3
Transcript of Veterans' Review Board hearing
13 December 2000
R4
Clinical Notes of Dr Murray (15 pages)
R5
Clinical Notes of Dr Wong
R6
Clinical Notes of Dr Rogers
R7
Respondent's Statement of Facts and Contentions
10 December 2002
issues
4. The relevant issues in this matter are:
(a) what are the appropriate diagnoses for the conditions nominated in the Applicant's claim of 3 September 1998; and
(b) does each nominated condition fall within the Tribunal jurisdiction;
(c) are the conditions found by the Tribunal to fall within the Tribunal's jurisdiction war-caused.
legislation
5. The relevant legislation in this matter is the Veterans' Entitlements Act1986 ("the Act") and in particular sections 9, 120(1), 120(3), 120A, 120B.
background
6. The Applicant was born on 4 August 1946, and rendered full time service in the Royal Australian Air Force from 11 May 1966 until 10 May 1975, with a period of service in Vietnam from 29 October 1970 until 9 June 1971(T3, p11). The Applicant lodged a formal claim with the Respondent on 3 September 1998 in which he made claim for the following disabilities to be determined as war-caused (T4):
(1) Hearing, Stress and Anxiety - the Applicant described that he became aware of his hearing loss, his stress and anxiety in 1969. Dr Rogers, the treating General Practitioner noted that an audiogram was not available and that the anxiety and stress were intermittent, and that he had attended a stress management course. No specialist reports attached.
(2) Back Pain - the Applicant indicated that this commenced during his service in Vietnam. Dr Rogers indicated that he had had treatment by both a physiotherapist and chiropractor for this condition. An xray of the full spine was undertaken on 15 January 1998, and the Radiologist's Report, which was attached, stated (T4, p60):
“FULL SPINE: There is mild thoracic scoliosis convex right and slight lumbar scoliosis convex left. There is minor pelvic tilt with the right hip being slightly higher than the left. There is some increase in thoracic kyphosis.
A few Schmorl's nodes are noted in lower thoracic and upper lumbar endplates. There is minimal lower thoracic and lumbar spondylosis. No other bone, joint or disc lesion is detected. Hip and sacroiliac joints are normal. No abnormality is seen in paraspinal soft tissues).”
(3) Chest Problems, Sinus and Bowel Problems: the Applicant indicated that the problems had been caused by service. Dr Rogers indicated that the Applicant had obstructive airways disease, sinusitis, allergic rhinitis and irritable bowel syndrome.
7. In relation to his back the file documentation indicates:
(a) the Applicant stating he has problems if he sits and drives a car any distance (T5, p63), has difficulty with lifting or bending (T5, p65; T7, p75), is unable to do light gardening, heavy gardening, lawn mowing or lifting (T5, p64) and has not had a lot of treatment since he left the service (T6, p73) and he had to cease work on 30 October 1998, with his back condition preventing re-employment;
(b) Dr Rogers indicated that the Applicant suffers back symptoms (T8, p83) when sitting, standing or lying down with pain down the right leg. Dr Rogers reports a minor loss of movement of the thoracolumbar spine and the Applicant being treated with Panadol for this condition (T8, p83). Dr Rogers records that the Applicant suffered injury to his lumbar spine when pulling boats out of the water in Vietnam which caused his back to deteriorate later. He records no specific trauma (T8, p86), Dr Rogers believed the clinical onset of lumbar spondylosis was possibly before 1985, and considered the cause to be unknown, with worsening occurring in 1995 and 1998. Dr Rogers also drew attention to the xray of 15 January 1998 (documented earlier in this report at T8, p 86E)..
8. In relation to his bowel problems, the Applicant stated that he had ongoing discomfort and/or pain (T6, p68), while Dr Rogers reported the Applicant's symptoms as nausea, occasional diarrhoea, bloating ("burping") every day; that he is on Losec for his gastro-oesophageal reflux and Colofac for his irritable bowel syndrome ("IBS"), and that all his prescribed symptoms are due solely to his IBS (T7, p78); that he had a generalised anxiety disorder for many years and a single major depressive episode in 1988 (T7, p79).
9. In relation to his anxiety and stress, the Applicant indicated that he gets very irritable (T5, p62). Dr Rogers nominates the level of stress anxiety as mild and occasional, that he has observed no particular features, that he copes with work and that the effect of the condition is possibly related to a recent failed relationship (T7, p80). Dr Rogers also indicated that the Applicant enjoys furniture design, but in June 1998 became stressed with the woodwork course and required counselling as he did in 1988 when he was treated with Tryptanol for his depression (T7, p82).
10. The Applicant was seen by Dr Murray, a consultant psychiatrist on 27 November 1998 when he presented for assessment of anxiety (T9, p87). In his report dated 27 November 1998 (T9) Dr Murray concluded:
"I made a diagnosis of Generalised Anxiety Disorder. On the available information it seems likely that Mr Davis' condition is long standing and, as environmental stresses go, the loss of his mother, conflict with his stepmother and his stepmother's psychiatric illness seems more likely contributors than do his military experience. He is unclear regarding whether or not his condition was caused or worsened by military experiences."
11. The Applicant's service medical records indicate the following :
(a) Was seen by a consulting psychologist on 12 May 1969, who in his report (T3, p45B) indicated that the Applicant had "a below average fund of general knowledge, poor judgment of social codes, poor concentration and a marked degree of dysfunction in abstract verbal conceptualization ... On the performance side, this patient is a suspicious person, given to over alert scanning of his surroundings, his understanding of human motivations and relationships is below average ... he is capable of a good average level in practical situations at semi-skilled level".
(b) In a follow on report by Dr Prentice, a consultant psychiatrist, who interviewed the Applicant and reported in the following, terms on 29 May 1969 (T3, p45):
"I would regard most of his bizarre complaints about himself as being in keeping with dull normal intellect which lacks the necessary verbal facility to express himself accurately and fully. It may well be that he will have a paranoid psychotic adjustment at some point in time in the future as he tends to be introspective and somaticises his anxiety. Nevertheless, there seems to be no reason to prescribe treatment at the present time").
(c) A history of recurrent diarrhoea investigated by way of barium enema in July 1967, which showed no large bowel abnormality (T3, p16), there having been episodes of diarrhoea in October 1966 and again with further episodes in the last six months of 1967 (T3, p36) and again in September 1969 (T3, p32).
12. On 11 March 1999 the Respondent determined that the Applicant was suffering from the following conditions which he accepted as being war-caused (T13):
·Bilateral sensorineural hearing loss
·Chronic bronchitis and emphysema
The Respondent also determined that the following conditions were not war-caused:
· Generalised anxiety disorder
· Lumbar spondylosis
· Allergic rhinitis
· Acute sinusitis
· Irritable bowel syndrome.
13. In his application for review by the Veterans' Review Board, the Applicant nominated the conditions referred to in paragraph 12 of this decision that had not been determined to be war-caused and also appealed against the assessment granted - namely a disability pension at 30 per cent of the General Rate (T14).
14. The Applicant also lodged a further claim for osteoporosis on 24 December 1999 and in an assessment made by Dr Wong, the Applicant's treating General Practitioner on 27 January 2000 the following was noted:
(a) in relation to lower limb function, the Applicant could walk two kilometres, climb 20 stairs, has a limp in his right hip at times and uses hand support on rising (T17, p115);
(b) the following joints were affected by osteoporosis (T17, p115):
· right and left shoulder with to near normal range and normal range of movement
· right elbow and right wrist with normal range of movement
· right hip with 50 per cent loss of normal range of movement
· left hip with 25 per cent loss of normal range of movement
· right and left knee and right and left ankle with near normal range of movement.
(c) that the Applicant received physiotherapy twice weekly to maintain range movement and mobility, albeit with no major improvement;
(d) that the Applicant has the following symptomatology relating to his cervical spine (T17, p116):
·headache and restriction of movements
·keeps him sleepless
·no social recreation because of neck and back
·difficult to turn head especially after long drive
·pain tends to go down both arms.
(e) that the Applicant has the following symptomatology in relation to his thoraco-lumbar spine (T17, p116):
·pain all the time with radiation to right leg at all times
·constant sciatica with cramps especially after walking
·limps at times
·an aggravating back pain at times when walking
·pain in right hip when using stairs
(f) that the Applicant has a 50 per cent loss of movement in both the cervical and thoraco-lumbar spine and that all the described symptoms are solely due to osteoporosis (T17, p116).
15. On 25 February 2000 the Respondent determined that the Applicant's osteoporosis was a war-caused disability, and that it had been accepted on the Applicant's history of cigarette smoking. The disability pension was also increased to 40 per cent of the General Rate, with an overall lifestyle rating of 2 (T21).
16. On 20 March 2000 Dr Altman, a Consultant Psychiatrist, in a report addressed to the VRB, detailed that the Applicant had experienced the following stressful situations in Vietnam (T22):
1. "I went to the security gate at the beach and this (American) negro came onto the scene and there was a lot of trouble there - arguing - and the security guard asked if I would be a witness to it - I rejected it because I wasn't familiar with their racial problems - it made me upset and I just didn't know what to do (he did not stay and see what happened next)".
2. "Travelling to the beach every day - going through the villages each day - didn't know if I would be in danger or not - not only (with) the grown ups but the children could cause damage".
3. "Going past this mountain by vehicle because we knew they had caves - (scared of) being shot".
4."We had trouble on our base through racial things - four service police walked outside and threw hand grenades in - it made us all very nervous - we weren't allowed to leave our area until we were spoken to by our warrant officer".
5. "We had four aircrew shot down in the period I was there two were never found (he knew two of them but did not witness them being shot down)".
6. "We were always concerned that rockets would land in our area - the alarm would go off (at night time) and then we would head for the bunker - they would land over the back at the heli-pad".
17. Dr Altman detailed the Applicant's psychiatric symptomatology, and concluded that the Applicant was suffering from a chronic war-related post traumatic stress disorder, as well as symptoms indicative of a major depression. Dr Altman notes that the Applicant stopped work in November 1999, because of difficulties with his back. Dr Altman assessed the Applicant's psychiatric impairment at 35 points in accordance with the fifth edition of the Guide to the Assessment of Rates of Veterans' Pensions (GARP) (T22).
18. In telephone evidence to the VRB, the Applicant indicated that his exposure to the two bodies that had been referred to in Dr Murray's report was prior to Vietnam, with the following events in Vietnam being stressful to the Applicant :
·going past the French Foreign Legion graves at the foot of the hills on the way to the beach each day;
·the incident involving an American Negro who was on drugs (told later) and the confrontation with the Guard Commander;
·that in the incident involving the throwing of hand grenades, he was not near the area, but was not far away and that he did not see the grenades thrown, nor did he see them explode, because he was sleeping in his quarter, and he never saw any of the results of the exploding hand grenades (Exhibit R3).
19. The VRB in its decision dated 13 December 2000 (T23) affirmed that the following diseases/injuries suffered by the Applicant were not war-caused, for the following reasons:
·generalised anxiety disorder - no evidence of aggravation of a pre-existing condition within two years of a stressful event;
·does not suffer from post traumatic stress disorder in that he has not been exposed to experiencing a severe stressor;
·irritable bowel syndrome - unable to meet factors nominated in the relevant SoP;
·allergic rhinitis; and
·acute sinusitis - no material which would allow any factor in either of the relevant SoPs to be satisfied.
applicant's evidence
20. In a statement dated 15 February 2002 (Exhibit A1) the Applicant stated that he joined the Air Force in 1966 and was head gardener at a telecommunications unit at Point Pierce, Western Australia, prior to his posting as a General Hand to Phan Rang in October 1970. The Applicant stated that his first duty at Phan Rang was as Bar Manager, but he left this position after three days because he was uncomfortable handling money and was a bit slow. The Applicant stated that his next duty was as Beach Manager, where he took care of boats and equipment and supervised the RAAF personnel when using the beach.. This he did for six months, and was driven each day some eight kilometres to the beach with armed escort. The Applicant stated that he spent the final three months of his duty period in Vietnam as a Mail Courier.
21. The Applicant detailed in his statement the following incidents that he experienced and found stressful while serving in Vietnam:
(a) a confrontation between an American Guard Commander and an American Negro serviceman at the beach, in which the later shouted at the Guard Commander. The Applicant stated that he could see the abusive serviceman had a knife. The Applicant was asked by the Guard Commander to be a witness, but refused, walking away feeling frightened and vulnerable. The Applicant presumed it was a drug related incident, as the soldier was behaving erratically and there were a lot of serviceman being locked up for drug related offences;
(b) that travelling to and from the beach under escort through rice paddies and mountainous areas was very stressful, as it was known Viet Cong were in caves in the mountains;
(c) he had heard about an incident where some American servicemen threw some hand grenades into a building injuring some troops inside;
(d) that two RAAF aircraft were shot down, one shortly after he arrived and the crew never found and the other where the crew were rescued;
(e) never felt safe on his Mail Courier flights, as aircraft had local villagers on boards; and
(f) experiencing about 10 rocket attacks both at the base and the beach.
22. The Applicant also indicated that he injured his neck trying to start a large horsepower outboard motor on a ski-boat, in which he required assistance to return to shore because of pain. Back at the base he saw the doctor and was given tablets and a neck brace, which he wore for a few weeks, while he was on light duties. The Applicant stated that he had recurrences of neck pain both during and after service.
23. The Applicant believes his service in Vietnam changed him in the following ways:
·prior to Vietnam he was keen to get on in life. After Vietnam he felt he had lost interest and direction in life, with periods in which he would become really irritable and explode over trivial things and then break down, citing examples where on both occasions he threatened individuals with a knife; and
·after service he felt that he could not really trust people, and that he was very self- protective; that he left the construction industry as a result of back problems.
24. The Applicant indicated that he had increased his cigarette smoking habit from half a packet per day to one packet a day while serving in Vietnam, because of stress and anxiety. He continued smoking at this rate until 1991 when he ceased.
25. The Applicant also stated that he suffered from irritable bowel syndrome, which was diagnosed in the late 1980's, and that he has had other problems including hiatus hernia, ulcers and reflux, being treated with Losec for his heartburn for 10 years.
26. In oral evidence to the Tribunal, the Applicant stated that his mother died when he was one, and that he was brought up by his sister and grandmother. He stated that he did not have any problem growing up, that he left school at age 15 with initial employment as a seasonal picker, after which at age 17 he moved to Sydney and was employed at the Railways Institute for two years.
27. The Applicant stated that after joining the RAAF in 1966 and undertaking recruit training, he was posted to 34 Squadron and then Point Pierce as a gardener in 1968. He stated that he applied to go to Vietnam as he wanted to "move on", "go overseas" and "get away from gardening". He also indicated that he saw a psychologist prior to going to Vietnam.
28. The Applicant informed the Tribunal that after being two to three months in Vietnam, he had changed his mind, that his desire to go to Vietnam was a good thing, as he was getting upset, not able to handle things and unable to concentrate; that he was afraid of being on the beach and unable to handle both racial and drug problems.
29. The Applicant also indicated that when he returned to Australia he had difficulty with his supervising role as a corporal in relation to issues concerning drugs and in particular circumstances where an aircraftsman left his job, he took no action against him because he was afraid of him.
30. The Applicant told the Tribunal that he has felt depressed for about 10 years, during which time he cannot go anywhere, do anything, lacks concentration, avoids people, and becomes very emotional - a set of feelings, which he described in February 1974 while serving with 34 Squadron, and which he detailed at page 23 of the T documents.
31. The Applicant also confirmed that as described in Dr Murray’s report, he had experienced a degree of conflict with his step-mother in the late fifties, early sixties; that he had seen Dr Altman four times and that there had been flare ups at work after leaving the service associated with episodes with his supervisor waiting for him to answer the phone. The Applicant also indicated that when his father died in 1974, he became upset and lost control for a period. The Applicant also indicated in response to questions in cross-examination that he became upset in Vietnam, did not cope all that well, but did not seek help during his period of service in Vietnam.
medical evidence
dr peter macarthur
32. In a medical report dated 27 June 2000 (contained within Exhibit R5), Dr Macarthur, a Consultant Surgeon, detailed the following conclusion:
"I am uncertain as to the cause of Mr Davis's tongue symptoms which seem to be settling satisfactorily at the present time. Should they recur then I would recommend a neurological referral. He does have a cervical spondylosis and I think this is the cause of his recurring headaches and pains in the back of his head and neck. He also suffers from an allergic rhinitis, asthma, the irritable bowel syndrome and reflux and it is quite possible that there are specific allergies giving rise to these symptoms. I have recommended that he undergo full allergy testing and appropriate specific allergy therapy and I will let you have the results as they come to hand. I would be happy to review the situation at any time."
33. In a report dated 2 May 1985, an xray of the Applicant's cervical spine is reported upon in the following terms (Exhibit R6, p122):
"Apart from a slight scoliosis concave to the left, there is no abnormality of the cervical spine.".
34. In a radiological report of the Applicant's cervical spine dated 26 September 2000, Dr Curran states (Exhibit R5):
"There is slight thinning of the C3/4 and C4/5 discs. There are no reactive changes on the disc margins, and the slightly reduced AP diameter of the C4 and C5 vertebral bodies suggest these changes could be developmental rather than degenerative. There is a tiny calcific or osseous focus in the anterior ligament at C5/6. The other cervical discs and vertebrae appear normal, including the facet joints and neural foramina.
There is slight accentuation of the cervical lordosis from C2 to C5. Vertebral alignment is otherwise satisfactory. Movements appear restricted."
35. In a report dated 18 June 2002, Dr Ehrlich, a consultant in Orthopaedic Rehabilitation summarised his opinion in the following terms (Exhibit A4) :
"This gentleman sustained an injury to his neck whilst serving in Vietnam. He had severe pain and was in a neck brace for several weeks. He now has flattening of the C4/5 disc space and a reasonable hypothesis can therefore be raised that his present condition is the consequence of cervical disc damage whilst serving in Vietnam."
36. In a medical report dated 6 April 1999, Dr Ryan, Consultant Orthopaedic Surgeon, detailed the following assessment of the Applicant (Exhibit R6, p77):
"Mr Davis has somatic spinal pain. Apart from osteopenia there is no gross evidence of irritative or compressive neuropathy either arising from his cervical or lumbar spines. He has a smooth dorsal kyphosis which may be either inherited or degenerative or perhaps both. He has evidence of osteopenia. This could be idiopathic but raises the question of whether or not his prolonged exposure to supposedly 'safe' inhaled steroids is not a precipitating factor.
I suggest he be referred to a local endocrinologist for advice about his bone density."
37. In a medical report of an upper G.I endoscopy performed on 29 May 1996, Dr Wilson, Consultant Physician, stated (Exhibit R6,p67) :
"Previous pre-pyloric ulceratrion. Hiatus hernia and significant gastroesophageal reflux. Ulcerative oesophagitis. Inflamed false vocal cords suggests significant reflux into the laryngo pharynx."
38. In a medical report dated 19 January 2001 (Exhibit R5), Dr Wenman, Consultant Gastroenterologist detailed the following findings:
"At examination the duodenal cap was normal. The antrum displayed evidence of inflammation and some minor polypoidal formation. Biopsies both for histology and helicobacter pylority were undertaken. The stomach appeared normal otherwise. The gastro-oesophageal junction demonstrated evidence of a hiatus hernia with short segment Barrett's changes in the distal oesophagus. These were biopsied for histopathology.
The oesophagus otherwise appeared normal.
I can only but recommend continuation of Proton-pump inhibitor therapy unless something untowards turns up in the biopsies."
Both biopsies were reported as within normal limits, with no evidence of helicobacter pylori organisms.
39. In a medical report dated 11 July 2001 (Exhibit R1), Dr Shand, Consultant Psychiatrist, detailed the following opinion:
“1. The reasons for ceasing employment were probably multiple. I am unsure when he actually stopped work altogether. Dr Scott Murray in his report stated that he last worked two weeks before the consultation which occurred in November 1998. Probably the major reason for ceasing work was the spinal osteoporosis but there were probably also contributions from the veteran's personality disorder and related symptoms.
2. From my assessment, psychiatric diagnosis is Personality Disorder, Avoidant type. I particularly note report on psychometric testing by P.M. Sarfaty dated 12 May 1969 in which on the W.A.I.S., ’Verbal I.Q. was 78 (Borderline Defective). Performance I.Q. was 98 (Average). Full Scale I.Q. was 86 (Dull Normal).’ The report reads 'The general impression from the intelligence testing is that the patient has had a low level of schooling, doesn't understand people or social behaviour, and feels threat from interpersonal relationships, to the extent that a severe ego weakness exists." Under Personality Dynamics: 'The projective testing confirms - 1. The existence of an ego weakness, very likely of a psychotic type' etc. '2. The patient's low intellectual status and the nature of the Rorschach data points to feelings of inferiority, with a closing up on himself against a likely paranoid schizophrenia' etc.
Comment. This testing was done when the veteran was 22 years of age. The opinion is consistent with a diagnosis of Personality Disorder at that time.
3. I consider that the history does not satisfy the Statement of Principles for Generalised Anxiety Disorder, Anxiety Disorder, or Post-Traumatic Stress Disorder.
4. The history of experiences during operational service in Vietnam does not satisfy the relevant Statement of Principles.
5. In my opinion the history of stressors during Vietnam war service does not meet the applicable SoP.
6. Assessment of GARP is 8. Sheets are enclosed.
7. The major reason for unfitness for work is probably spinal disorder due to osteoporosis, with some contribution from his personality disorder and symptoms associated with it. He told me that he does do some woodwork and helps on properties now and then but with care because of his spinal disorder. He also helps five war widows as their Legatee. He has no particular financial problems.
8. From my assessment, the veteran's psychiatric disorder diagnosed above, does not prevent him from working more than 8 hours or 20 hours per week. I also doubt his motivation to work.”
40. In a medical report dated 11 January 2002 (Exhibit A2), Dr Dinnen, a Consultant Psychiatrist detailed the following comments:
"I do not believe there is a basis for making the diagnosis of post traumatic stress disorder.
His behaviour and his performance at interview was not suggestive of either depressive illness or a marked anxiety disorder. He gave his account in a matter of fact way, referring without emotion to the events which occurred in Vietnam, and if anything appearing to be somewhat off hand in his discussion of these matters. He was suggestible, his thought patterns were disorganised but not in the way that one finds with anxiety disorder, and there was no obvious impairment of memory. He was a suggestible and simplistic man who may well have had some childhood psychosis or head injury, but certainly there was no indication from his account or careful perusal of these documents that his service experiences as such had led to any ongoing psychiatric disorder. The most important information of course is that contained within the service medical records, and it is clear that he was identified as being of somewhat abnormal personality and simplistic capabilities, well before his posting to Vietnam. If ever a job was a sinecure for serviceman, his duties in Vietnam appear to satisfy that term. His employment and personal history are very much in accord with personality inadequacy, rather than psychiatric illness. It would require something more for diagnosis of such illness than the vague compendium of symptoms which he presented at interview.
The contamination of his presentation since he first saw Dr Murray is obvious. I believe Dr Murray's report is the most reliable, particularly as he was the first psychiatrist who examined the patient following his claim for benefits to the Department of Veterans Affairs, and he examined the patient at the request of the Department. Even so, it seems likely that the patient did have discussion with other veterans prior to seeing Dr Murray.
All the psychiatrists who have examined this patient, since 1969 to the present day, have noted these abnormalities of personality function, but have not found evidence for any chronic psychotic illness and one can but consider the patient's deficiencies of performance to reflect a constitutional aetiology. Like Dr Murray, Dr Altman and Dr Shand I believe that some of his symptoms of anxiety are significant but I am afraid that it is difficult to rely on them for diagnostic purposes.
Opinion: The patient's symptoms presented at interview and consistently over the years would warrant the diagnosis of generalised anxiety disorder. I do not believe this is related to traumatic war service.
On axis 2 of the DSM IV scale the diagnosis of personality disorder is warranted in my opinion. Similarly, there is no evidence that this is related to service."
41. In a further report dated 28 May 2002 (Exhibit A3), Dr Dinnen detailed the following comments:
"There is nothing within these documents which would cause me to change my opinion. I still do not think there is a reasonable hypothesis linking the patient's war service and generalised anxiety disorder. In spite of the ever increasing bulk of documents concerning his claim, his clinical presentation and the matters which I reviewed in my report of January this year provide the most compelling evidence for the opinion at which I arrived.
Neither according to the 1994 Statement of Principles with regard to generalised anxiety disorder or the 2000 Statement of Principles concerning various types of anxiety disorder do I believe that I can say with any confidence that the patient experienced a stressful event not more than two years before the clinical onset of generalised anxiety disorder or alternatively experienced a severe psychosocial stressor leading to that outcome."
42. In a historical research report from Writeway Research Service dated 1 November 2001 (Exhibit R2) Air Commodore Brennan made the following summary of his findings:
"6. It has not been possible to confirm whether or not Mr Davis was the 'beach manager' at Phan Rang. However, there was a beach facility located about eleven kilometres east of the Base and it would not have been inconsistent with Mr Davis's duties as a General Hand to look after the welfare equipment that was housed there. If he was 'beach manager', it is possible he would have travelled there every day the beach was open except for days he had off. It has not been possible to confirm whether the route to the beach passed through a village/s; there is not clear evidence either way. There may have been two routes, one that did pass through a village/s and one that did not, that were utilised depending on the security situation prevailing at the time. Nevertheless, there is evidence that the route/s to the beach was potentially insecure with parties only travelling to/from the beach with an armed escort.
7. The route/s did pass by a mountain that was suspected of being occupied by the enemy from time to time. There is evidence that the mountain was occasionally attacked by Allied forces and one of the people interviewed as part of this research effort recalls being 'sniped at' as he was driving along the passing road.
8. There was no evidence found which would confirm that there was an incident of US service policemen throwing grenades into a building at Phan Rang during Mr Davis's time there. One person interviewed is confident that there was no such incident at that time, while another has a hazy recollection of hearing about something along those lines but cannot recollect any details. There is some evidence that a similar event did occur but only after 2 Squadron had left Phan Rang.
9. Four aircrew were lost on operations during Mr Davis's posting to 2 Squadron. On the night of 3 November 1970, a 2 Squadron Canberra aircraft failed to return from a bombing mission; no trace of the aircraft or its crew has ever been found. On the afternoon of 14 March 1971, a 2 Squadron Canberra aircraft was shot down by surface-to-air missiles; the crew ejected from the aircraft and were rescued by a US helicopter the following day.
10. There were up to three rocket attacks on Phan Rang during Mr Davis's time there. The locations of impact points of the rockets have not been able to be determined. However, there was no injury to RAAF personnel or damage to RAAF aircraft, buildings or facilities from these attacks.
11. It was not possible to confirm whether Mr Davis was involved in moving two corpses that had been in the water for three weeks. There is no mention of any such incident in unit records or other documentation researched and no one interviewed as part of this research effort had any knowledge of such an incident."
submissions
applicant
43. Counsel for the Applicant, while stating that the Applicant did not intend to further pursue the claim in relation to the conditions of allergic rhinitis and acute sinusitis, contended that the Applicant suffers from the following conditions:
·generalised anxiety disorder
·depressive disorder
·irritable bowel syndrome
·cervical spondylosis
·gastro-oesophageal reflux disease.
44. Counsel further contended that the conditions of cervical spondylosis and gastro-oesophageal reflux disease were diagnoses consistent with the general description of symptomatology/conditions stated in his application of 3 September 1998, in which the Applicant referred to back pain and bowel problems. In so doing Counsel referred to the definitions of back and bowel as described in the twentieth edition of Chamber's Dictionary at pages 93 and 153 respectively.
45. In relation to the disease of generalised anxiety disorder, Counsel contended that the disease was caused, contributed to, or aggravated by his operational services, which involved the Applicant experiencing a number of severe psychosocial stressors, namely:
(i) witnessing a confrontation involving a serviceman armed with a knife;
(ii) travelling in escorted vehicles through villages, where an enemy presence was suspected each day; and
(iii) experiencing a number of rocket attacks on the base where he was stationed.
46. It is the Applicant's contention that he satisfies factor 5(a)(ii) or in the alternative, factor 5(a)(v) of SoP Instrument No1 of 2000 concerning Anxiety Disorder, or alternatively factor 1(b) or 1(c) of SoP Instrument No 48 of 1994 as amended by Instrument No 275 of 1995 concerning Generalised Anxiety Disorder.
47. Counsel further contended that the Applicant's irritable bowel disorder was caused, contributed to, or aggravated by his war service in that the Applicant satisfies factor 5(d) of SoP Instrument No 103 of 1996 concerning Irritable Bowel Syndrome in that the Applicant was suffering a specified psychiatric condition within six months before the clinical worsening of irritable bowel syndrome.
48. Counsel also contended that the Applicant suffers from a depressive disorder, and that this condition is war-caused, as the Applicant satisfies factors 5(b) or in the alternative 5(f) in SoP Instrument No 58 of 1998 as a consequence of experiencing severe psychosocial stressors. Further the Applicant also satisfies factors 5(c) and in the alternative 5(h) of the same SoP as a consequence of suffering from a generalised anxiety disorder.
49. Counsel contended that the correct diagnosis for the Applicant's back pain was cervical spondylosis and that this was a war-caused condition arising from the Applicant's attempts to start a large horsepower outboard motor on a skiboat during his operational service. Counsel contended that the Applicant satisfies factors 5(h) or in the alternative 5(s) of SoP No 56 of 1998 concerning Cervical Spondylosis, each factor being concerned with a history of “suffering a trauma to the cervical spine". The Applicant contends that he satisfies factor 5(h) or in the alternative factor 5(s) in SoP Instrument No 31 of 1999 concerning Cervical Spondylosis (this being a later SoP). Counsel also contended that the Applicant satisfied factors 5(i) and in the alternative 5(t) of SoP Instrument No 56 of 1998 and factor 5(j) and in the alternative 5(t) of SoP Instrument No 31 of 1999 concerning Cervical Spondylosis, in that there is a history of the Applicant “suffering a cervical intervertebral disc prolapse."
50. Counsel further contended that the Applicant's bowel problems includes gastro-oesophageal reflux disease and that this was caused, contributed to or aggravated by his war service. Counsel, in noting the Applicant's increased smoking habit during his operational service, contends that the Applicant satisfies factors 1(j) or in the alternative 1(m) of SoP Instrument No 121 of 1995, or in the alternative factors 5(f) and 5(k) of SoP Instrument No 62 of 1999, both Instruments being concerned with Gastro-oesophageal Reflux Disease.
respondent
51. The Respondent contends that the appropriate diagnosis for the psychiatric condition is personality disorder, and in so stating relies on the opinion of Dr Shand. The Respondent contends that the appropriate SoP is Instrument No 143 of 1995 as amended by 13 of 1997 concerning Personality Disorder. The Respondent contends that the Applicant did not suffer a 'catastrophic experience' as defined within the Instrument and accordingly a reasonable hypothesis does not exist linking the Applicant's psychiatric disorder with his operational service.
52. The Respondent contends that the appropriate diagnosis for the bowel condition is irritable bowel syndrome: that the appropriate SoP is Instrument No 103 of 1996 and that a reasonable hypothesis would only exist in circumstances that the Applicant's claim for generalised anxiety disorder and/or depressive disorder were accepted as war-caused disabilities.
53. In relation to both gastro-oesophageal reflux disease and cervical spondylosis, the Respondent contends that the Tribunal does not have jurisdiction, in that neither condition has been subject to a determination and that no reviewable decision has been made by either the Commission or the VRB in relation to either condition.
consideration and findings
54. In this matter the Tribunal has been particular in detailing the nature, circumstances and history of the Applicant's claim, the nature and circumstances of his appeal to the VRB, his successful claim in relation to osteoporosis, and the nature and content of the medical details and reports which have been included in his original claim and/or as part of his appeal to the VRB. The Tribunal has also been particular in detailing the relevant medical history and clinical notes before the Tribunal, as well as detailing the Applicant's history of events that has led to the claim under consideration.
55. In addressing the issue of what diagnostic conditions the Applicant suffers, the Tribunal, having considered all the material before it, details the following consideration and findings:
(a) Psychiatric Condition
The Tribunal notes the psychological assessment of 12 May 1969 and the report of Dr Prentice, a Consultant Psychiatrist of 29 May 1969 in which he indicates that the Applicant "tends to be introspective and somaticises his anxiety. Nevertheless there seems to be no reason to prescribe treatment at the present time" (T3, p45). The Applicant was reported as "seems to be depressed because he has run out of tonic that he had supplied by a civilian" (25 August 1969 T3, p32). A note by a Research Psychologist on 2 December 1969 suggests that the Applicant's psychiatric condition was in evidence pre service "and related to family circumstances, though has enhanced since in Service" (T3, p43).
The Tribunal further notes that it is recorded in his medical file that on 7 February 1974 that "he is not happy in his job as a G.H. nervous on parade, Rx Valium 2 mgs tds” (T3, p24).
A further entry on 13 February 1974 details (T3, p23):
" Tabs help him sleep
Has lack of interest, depressed mood,
On discussion he lacks expression - states that his appetite is depressed, occasional diarrhoea, discomfort in stomach.
Gets shakes and sweats on guard of honour;
? anxiety state? depression.
Rx Valium 5 mgs T tds."
A further note on 22 February 1974 indicates "much improved on Valium" (T3, p23).
The Tribunal also notes the clinical notes made by Dr Rogers in the claim form of 3 September 1998 that the Applicant's anxiety and stress symptoms were intermittent, with the level of stress and anxiety being mild and occasional, that he has observed no particular features, copes with work and is possibly related to a recent failed relationship (T8, p80). Dr Rogers also noted one episode of depression in 1988 when he was treated with counselling and Tryptanol (T8, p82).
In an assessment dated 27 November 1998, Dr Murray, a consultant psychiatrist made a diagnosis of generalised anxiety disorder and concluded that particular environmental stresses (loss of his mother, conflict with stepmother and the psychiatric illness of his stepmother) as more likely contributors to causation of his longstanding condition, rather than his military experience (T9).
In a further assessment dated 20 March 2000, Dr Altman opined that in the light of the Applicant's exposure to nominated stressful situations in Vietnam, the Applicant was suffering from a chronic war related post traumatic stress disorder, as well as symptoms indicating of a major depression (T22).
In a assessment dated 11 July 2001 (Exhibit R1), Dr Shand, a consultant psychiatrist opines that the Applicant's psychiatric diagnosis is personality disorder, avoidant type, and that such a diagnosis is congruent with a diagnosis of personality disorder evidenced by the psychometric testing in May 1969. Dr Shand also considered that the history does not satisfy the diagnostic criteria contained within the SoPs for Generalised Anxiety disorder, Anxiety Disorder or Post Traumatic Stress Disorder.
In an assessment dated 11 January 2002 (Exhibit A2), Dr Dinnen, a consultant psychiatrist, concluded that:
"I do not believe there is a basis for making the diagnosis of post traumatic stress disorder.
His behaviour and his performance at interview was not suggestive of either depressive illness or a marked anxiety disorder".
In summary Dr Dinnen detailed the following opinion:
"The patient's symptoms presented at interview and consistently over the years would warrant the diagnosis of generalised anxiety disorder. I do not believe this is related to traumatic war service.
On axis 2 of the DSM IV scale the diagnosis of personality disorder is warranted in my opinion. Similarly, there is no evidence that this is related to service."
The Tribunal notes that the following SoPs were current at the time of the Tribunal's consideration:
· Instrument No 1 of 2000 concerning Anxiety Disorder
· Instrument No 58 of 1998 concerning Depressive Disorder
· Instrument No 143 of 1995 as amended by 13 of 1997 concerning Personality Disorder
· Instrument No 3 of 1999 as amended by 54 of 1999 concerning Post Traumatic Stress Disorder.
The Tribunal also notes that the following SoPs were in force at the date of the Commission's determination (11 March 1999):
· Instrument No 48 of 1994 as amended by No 275 of 1995 concerning Generalised Anxiety disorder
· Instrument No 3 of 1999 concerning Post Traumatic Stress Disorder.
The Tribunal observes the particular stressful experiences as described by the Applicant in relation to his service in Vietnam, namely:
·the confrontation between an American Guard Commander and an American Negro serviceman, from which the Applicant walked away feeling frightened and vulnerable, having declined to be a witness to the event when asked by the Guard Commander;
·travelling to and from the beach under escort was stressful;
·experiencing rocket attacks at both the base and the beach;
·loss of two RAAF aircraft;
·feeling unsafe on courier flights; and
·hearing about an incident where some Americans threw some hand grenades into a building, injuring some of the troops inside.
The Tribunal also observes the Applicant's description of his symptoms after his service in Vietnam, namely:
· a loss of interest and direction in life;
· episodes of irritability and explosive behaviour over trivial matters; becomes emotional; felt depressed in 1974 and since 1988;
· inability to trust people; and
· difficulty in supervising others.
The Tribunal also notes the Applicant's description of his symptoms while on service in Vietnam, namely:
·upset, not able to handle things, unable to concentrate;
·unable to deal with social and/or drug problems; and
·afraid of being on the beach.
The Tribunal, having considered all the material outlined, concludes that, with the standard of proof necessary for diagnosis, being one of reasonable satisfaction, the diagnoses for the Applicant's psychiatric condition are:
(a) generalised anxiety disorder
(b) personality disorder (Axis 2 disorder).
56. In so finding, the Tribunal, in relation to the personality disorder, has relied upon the Applicant's narration of his circumstances over time, the psychological assessment made and the psychiatric opinion by Dr Prentice prior to the Applicant's Vietnam service, the opinions of Drs Shand, Murray and Dinnen and the diagnostic criteria listed in SoPs Instrument No 143 of 1995 as amended by Instrument No 13 of 1997 concerning Personality Disorder. It is also evident to the Tribunal that the material before the Tribunal points to an onset of this disorder prior to the Applicant's service in Vietnam.
57. As regards the diagnosis of the generalised anxiety disorder, the Tribunal has again relied upon the Applicant's narration of his circumstances over time, the pre Vietnam psychological and psychiatric valuation by Dr Prentice, and the psychiatric opinions of Drs Murray and Dinnen. It is also evident to the Tribunal that the material points to the clinical onset of this condition occurring prior to his Vietnam service.
58. Further the Tribunal, while noting the Applicant's history of depressed mood in 1974 and again in 1988 and thereafter, and the opinion of Dr Altman that the Applicant is suffering from a chronic war-caused post traumatic stress disorder and a depressive disorder, finds that on the balance of probabilities, such diagnoses are inappropriate in this matter. In so stating the Tribunal concludes that the diagnostic criteria contained within the two relevant SoPs are not met, in that the Applicant's description of the events experienced in Vietnam did not meet the diagnostic requirements for exposure to a traumatic event and this and the description of his episodes of depressed mood in 1974 and the episode in 1988 could not be described as major depressive episodes. Further the Tribunal relies upon the psychiatric opinions of Drs Murray, Shand and Dinnen, who were unable to find evidence sufficient to make a diagnosis of depressive disorder.
59. In addressing the back neck condition, the evidence before the Tribunal clearly details that:
(a) the Applicant had an injury to his neck while in Vietnam; that he was treated with a neck brace and analgesics for some weeks; that neck pain and pain across the dorsum of the right hand and tingling in the fingers occurred in 1974 (T3, p38) that xrays in September 1974 showed no significant spondylitic changes, but a congenital abnormality in increased vertical height of the body of C6 (T3, p39); a normal cervical spine xray in 1985 (Exhibit R6, p122); xray changes noted at C3/4 and C4/5 discs on xray of 26 September 2000 (Exhibit R5); a diagnosis of cervical spondylosis made by Dr Macarthur in June 2000 (Exhibit R5); cervical disc damage C4/5 - Dr Ehrlich in June 2002 (Exhibit A4).
From this material, the Tribunal concludes that the Applicant neck problems are properly diagnosed as cervical spondylosis.
(b) an xray of thoraco lumbar spine in 1998 revealed minimal lumbar spondylosis (T4, p60). File documentation reveals a long and significant of lower back symptomatology, following no specific trauma. Ceased work on 30 October 1998 with his back preventing re-employment (T11, p95). From all the material before the Tribunal, the Tribunal concludes that the appropriate diagnosis of his back condition is lumbar spondylosis.
60. In addressing the bowel condition it is evident to the Tribunal that there are two conditions present, namely irritable bowel syndrome and gastro-oesphageal reflux disease and the Tribunal so finds that these two diseases exist. The material points to a long history of irritable bowel syndrome commencing prior to Vietnam and continuing thereafter. In relation to the gastro-oesophageal reflux disease the material points to a history "of epigastric pain - not associated with meals - occasionally goes through to back. He has noticed reflux into throat on postural changes. Finds he has trouble breathing - more effort on inspiration" - treated with Mylanta (September 1972, T3, p25); that he had been treated for reflux with Losec for 10 years; endoscopies in May 1996 (Exhibit R6, p68) and January 2001 (Exhibit R5) demonstrated a hiatus hernia and reflux.
Finally the Tribunal finds that the Applicant has and continues to suffer from allergic rhinitis and acute sinusitis.
61. In summary the Tribunal finds that on the balance of probabilities the Applicant suffers from the following conditions which are diagnosed as:
·Generalised anxiety disorder
·Personality disorder
·Cervical spondylosis
·Lumbar spondylosis
·Osteoporosis
·Irritable bowel syndrome
·Gastro-oesophageal reflux disease
·Allergic rhinitis
·Acute sinusitis
62. In addressing the issue of what diseases are properly before the Tribunal, the Tribunal notes that the Applicant has not pursued the conditions of allergic rhinitis and acute sinusitis before the Tribunal, and as such the Tribunal affirms that part of the determination made by the Respondent on 11 March 1999, in so far as it is concerned with those two conditions.
63. In relation to the disability of gastro-oesophageal reflux disease, the Tribunal has been particular in detailing the nature of the Applicant's claim and the medical material which accompanied the claim. It is evident to the Tribunal after such a detailed examination of all the relevant material that the claim was concerned solely with the issue of irritable bowel syndrome, despite there being clear clinical evidence that the Applicant was suffering from a hiatus hernia and gastro-oesophageal reflux disease.
64. The Tribunal further notes that a similar course of action was pursued before the VRB, with again no contention being made or suggested that the Applicant was pursuing a claim for gastro-oesophageal reflux disease. Accordingly as there has been no primary decision taken by the Respondent in relation to the issue of gastro-oesphageal reflux disease, and consequently no consideration by the VRB, the Tribunal finds that it does not have jurisdiction in relation to this particular disability, pursuant to section 175(1) of the Act.
65. In addressing the issue of back pain, the Tribunal observes that the Respondent concluded that the appropriate diagnosis for this condition was lumbar spondylosis. The Tribunal again observes the nature, circumstances and accompanying documentation associated with the Applicant's claim of 3 September 1998 and concludes that there is only evidentiary material pointing to the thoraco lumbar spine. Similarly the Tribunal observes that subsequent documentation and statements by the Applicant at the VRB did not refer to or pursue a claim for cervical spondylosis. While the Tribunal has noted that the Applicant's Counsel suggested that the xray report of January 1998 referred to the back generally, of which the cervical spine is part, the xray report clearly details information only in relation to thoracic and lumbar spine, hips and sacroiliac joints. Similarly, the accompanied documentation only referred to symptomatology relating to the lower back. As such the Tribunal concludes that the disability of cervical spondylosis does not fall within the jurisdiction of the Tribunal on this occasion. As pursuant to section 175(1) of the Act, no primary decision has been taken by the Respondent and no consideration of the issue has been undertaken by the VRB.
66. In addressing the issue of entitlement to the conditions remaining, the Tribunal will deal with each in turn.
(a) Personality disorder
67. The relevant SoP is Instrument No 143 of 1995 as amended by Instrument No 13 of 1997 concerning Personality Disorder. The Tribunal having examined all the material before it observes that the material points to the Applicant having experienced particular situations while serving in Vietnam, and also points to the Applicant's responses to having experienced those situations. The Tribunal observes that the material points to a hypothesis relating either the occurrence of the personality disorder prior to operational service with aggravation on operational service and/or alternately the occurrence of the personality disorder on operational service.
68. In considering the issue of whether any of the hypotheses concerning personality disorder and its relationship to operational service are reasonable hypotheses, the Tribunal notes the factors nominated in SoP Instrument No 143 of 1995 as amended, namely:
(a) suffering a catastrophic experience that immediately preceded an enduring personality change to the level of disorder; or
(b) inability to obtain appropriate clinical management for personality disorder.
69. The Tribunal also notes the definition of "enduring personality change" contained within paragraph four of the identified SoP:
"enduring personality change" means a psychiatric condition that is present for at least two years immediately following exposure to catastrophic stress; where
(a) the catastrophic stress must be so extreme that it is not necessary to consider personal vulnerability in order to explain its profound effect on the personality; and
(b) the personality change is characterised by a hostile or distrustful attitude towards the world, social withdrawal, feelings of emptiness or hopelessness, a chronic feeling of "being on edge" as if constantly threatened, and estrangement;
…”
70. The Tribunal, in addressing all the material it, observes that while the material points to the Applicant having experienced the particular events nominated earlier in this decision during his period of operational service, there is no material pointing to the Applicant experiencing any of the following:
· a catastrophic experience (catastrophic being defined as a sudden disastrous happening - Concise Oxford Dictionary);
· an enduring personality change;
· exposure to catastrophic stress as nominated in paragraph (a) in the definition of "enduring personality change";
· an aggravation of a pre-existing personality disorder, with the material pointing towards a continuation of his pre-operational service symptomatology relating to his pre-existing personality disorder;
· a temporal relationship of immediacy between exposure to a catastrophic experience and an enduring personality change; and
· inability to obtain appropriate clinical management.
71. As a consequence of these considerations, the Tribunal concludes that the hypothesis raised by the material in this matter and on this issue are not consistent with the template nominated in the Statement of Principles and therefor cannot be considered to be reasonable hypotheses. As such the claim relating personality disorder to war service must fail.
(b) Generalised Anxiety Disorder
72. The relevant SoP in this matter is SoP Instrument No 1 of 2000 concerning Generalised Anxiety Disorder, this being the SoP in force at the time of the Tribunal's consideration. The Tribunal having examined all the material before it observes that the material points to the Applicant having experienced particular situations during his service in Vietnam. As such the hypothesis raised by the material are essentially the following:
· the Applicant experienced particular events whilst serving in Vietnam which caused and/or aggravated a generalised anxiety disorder.
73. In assessing whether the hypothesis is reasonable, the Tribunal notes the following factors contained within Instrument No 1 of 2000:
“5(a)(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
…
5(a)(v) experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder, or
…”
74. The Tribunal also notes the definition of "severe psychosocial stressor" contained with paragraph 8 of the same Instrument:
"severe psychosocial stressor" means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems,
…”
75. The Tribunal in examining all the material observes that the material points to the Applicant feeling upset, frightened and vulnerable when walking away from an incident involving a Guard Commander and an American Negro serviceman, having declined to be a witness to the event when asked by the Guard Commander; feeling stressed when travelling to and from the beach under escort; feeling unsafe when on courier flights; concerned that rockets would land in the area either at the base or the beach; stressed when hearing of the episode of the hand grenades being thrown into an occupied building and the loss of two of the Squadron's aircraft, with the loss of two crew.
76. The Tribunal also observes that the material does not point to the Applicant experiencing feelings of substantial distress. Further the Tribunal observes that the material does not point to the Applicant suffering from the occurrence of symptomatology within two years indicative of a change of symptomatology consistent with a clinical worsening of a pre-existing generalised anxiety disorder and/or the occurrence of symptomatology consistent with a denovo occurrence of generalised anxiety disorder, having been exposed to the particular experiences outlined.
77. As a consequence the Tribunal concludes that the material before it does not point to each limb of the hypothesis, in that the material does not point to the Applicant experiencing feelings of substantial distress as a result of exposure to identified occurrences and the material does not point to symptomatology which is either consistent with a denovo clinical onset of generalised anxiety disorder or a clinical worsening of a pre-existing anxiety disorder within two years of having experienced the identified occurrences.
78. The Tribunal concludes that the hypotheses postulated in this matter are not reasonable in that the raised facts from the material are not congruent with the template nominated in the factors contained within SoP Instrument No 1 of 2000.
79. The Tribunal, in addressing the SoP Instrument No 48 of 1994 as amended by Instrument No 275 of 1995 concerning Generalised Anxiety Disorder, being the SoP in force at the time of the primary decision, notes that the factors 1(b) and 1(c) are relevant in this matter. The Tribunal further observes that both factors require "experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder" (factor 1(b)) - "before the clinical worsening of generalised anxiety disorder" (factor 1(c)).
80. The Tribunal notes that the term "stressful event" is defined in paragraph four of the SoP as: “’stressful event’ means an occurrence which evokes feelings of anxiety or stress”.
81. It is evident to the Tribunal that the term "stressful event" has been defined in particular terms that are different to that definition of severe psychosocial stressor used in the later SoP Instrument No 1 of 2000. The Tribunal, while accepting that the material, namely the incidents experienced by the Applicant on service in Vietnam points towards the Applicant having experienced a "stressful event", concludes that the material does not point to symptomatology which is either consistent with a de novo clinical onset of a generalised anxiety disorder or a clinical worsening of a pre-existing generalised anxiety disorder within two years of having experienced the stressful event.
82. The Tribunal concludes that the hypotheses postulated in this matter are not reasonable in that the raised facts from the material are not congruent with the template nominated in the factors contained with in SoP No 48 of 1994 as amended by Instrument No 275 of 1995.
irritable bowel syndrome
83. The Tribunal notes that the SoP in this issue is Instrument No 103 of 1996, concerning Irritable Bowel Syndrome. In considering all the material before the Tribunal, the Tribunal observes that the material points to the Applicant complaining of episodes of abdominal pain and diarrhoea and being investigated for such prior to his service in Vietnam. The material is silent as regards treated episodes of diarrhoea and/or abdominal pain while in Vietnam, while the material points to an episode of treatment for diarrhoea prior to his discharge and after service points to a continuing history of episodic bouts of abdominal pain and diarrhoea and intermittent treatment for the condition of IBS.
84. The hypothesis raised in this matter by the material is that the Applicant was suffering from a psychiatric condition, namely generalised anxiety disorder and/or personality disorder, prior to the clinical worsening of IBS.
85. The Tribunal notes factor 5(d) of the SoP Instrument No 103 of 1996:
“…
(d) suffering a specified psychiatric condition within the six months immediately before the clinical worsening of irritable bowel syndrome; or
…”
"a specified psychiatric condition" is defined in paragraph 7 of SoP Instrument No 103 of 1996 to mean:
“(a) a psychiatric condition with features of anxiety, including:
(i) generalised anxiety disorder, ICD code 300.02; or
(ii) panic disorder, ICD code 300.01; or
(iii) adjustment disorder with features of anxiety, ICD code 309.24, 309.28, 309.3, 309.4, or 309.9; or
(iv) post traumatic stress disorder, ICD code 309.81; or
(b) a psychiatric condition with depressive features, including:
(i) major depressive disorder, ICD code 296.2 or 296.3; or
(ii) neurotic depression, ICD code 300.4; or
(iii) other depressive disorders, ICD code 311; or
(iv) adjustment disorder with depressed mood, ICD code 309.0, 309.1, 309.4 or 309.28;
…”
86. The Tribunal, in noting that a specified psychiatric condition has a defined list of recognised psychiatric conditions, concludes that the material before it does not point to the Applicant suffering a war-caused specified psychiatric condition, and similarly the materials point to a clinical worsening many years after leaving the service.
87. Accordingly the Tribunal concludes that the hypothesis is not a reasonable hypothesis as the material does not point to raised facts which are consistent with each element in the template nominated in factor 5(d).
lumbar spondylosis
88.On 15 May 2003 the Tribunal received a request for a decision from both parties in the following terms:
“In respect of that part of the Decision under review being the Determination of the Delegate of the Repatriation Commission dated 11 March 1999 that relates to the condition of lumbar spondylosis is set aside and substituted therefor is a decision that:
1. The condition of Lumbar Spondylosis is determined to be war caused disability within the meaning of section 9 of the Veterans’ Entitlements Act.
2. The matter be referred to the Commission for assessment.
3. Pension is payable with effect from and including 3 June 1998.”
89. The Tribunal concurs in the request from the parties and issues a decision incorporating such agreements.
determination
90. The Tribunal determines that:
1. The decision under review is varied in so far as the psychiatric condition includes both the Applicant suffering from a generalised anxiety disorder, and a personality disorder; and
2. The conditions of generalised anxiety disorder, personality disorder and irritable bowel disorder are not war-caused disabilities; and
3. The conditions of cervical spondylosis and gastro-oesophageal reflux disease are not before the Tribunal for want of jurisdiction.
4. In respect to that part of the decision relating to the condition of lumbar spondylosis, the decision is set aside, and in substitution thereof, is a decision that
(a)The condition of lumbar spondylosis is determined to be war caused; and
(b)The matter, in this regard, be remitted to the Respondent for assessment; and
(c)The date of effect for payment of pension in this regard is 3 June 1998.
I certify that the 90 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: .......................................................................................
AssociateDate of Hearing 11 December 2002
Date of Decision 10 June 2003
Counsel for the Applicant Mr M VincentSolicitor for the Applicant Ms M McCarthy Vardanega Roberts
Advocate for the Respondent Mr J Marsh
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