Denman and Repatriation Commission
[2010] AATA 943
•25 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 943
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3762
VETERANS' APPEALS DIVISION ) Re JOHN DENMAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Bell, Senior Member
Dr Saw Hooi Toh, MemberDate25 November 2010
PlaceSydney
Decision 1. The Tribunal sets aside the decisions under review and instead decides that Mr Denman suffers from generalised anxiety disorder; his generalised anxiety disorder is war caused; and he is eligible to be paid at the special rate of pension.
2. This decision takes effect from 9 January 2008.
.......................[sgd]....................................
Ms N Bell, Presiding Member
CATCHWORDS – Veterans’ Entitlements – special rate pension – generalised anxiety disorder – clinical onset
Veterans’ Entitlements Act 1986
Lees v Repatriation Commission (2002) 74 ALD 68
REASONS FOR DECISION
Ms N Bell, Senior Member
Dr Saw Hooi Toh, Member1. Mr Denman served in the Australian Army from 30 June 1965 to 29 June 1967. He had operational service from 1 July 1966 to 11 August 1966 in Malaya in a light antiaircraft battery.
2. Mr Denman has the following accepted injuries or diseases:
· Bilateral sensorineural hearing loss;
· Lumbar spondylosis;
· Bilateral tinnitus;
· Solar keratosis;
· Adjustment disorder;
· Osteoarthrosis of both knees;
· Irritable bowel syndrome; and
· Major depressive disorder.
3. Mr Denman’s malaria, migraine and anxiety disorder were rejected as not war caused. His application to the Tribunal is in respect of the decision to reject anxiety disorder. He also appeals the decision to reject his claim for payment at the special rate of pension, this decision having flowed from the rejection of his anxiety disorder which was regarded as having an impact on his ability to work.
4. The Commission made numerous concessions. It conceded that the correct diagnosis of the remaining unaccepted psychiatric condition suffered by Mr Denman is generalised anxiety disorder. The Commission also conceded that Mr Denman experienced a Category 2 stressor whilst on operational service, that is, his operation of antiaircraft guns in Malaya. Finally, the Commission conceded that, if anxiety disorder were to be found to be war caused, Mr Denman would satisfy all of the requirements to be paid at the special rate of pension.
5. However, the Commission maintained that Mr Denman’s anxiety disorder is not war caused because its date of clinical onset was not within one year after he experienced the conceded Category 2 stressor and that this means that Mr Denman falls outside the relevant factor in the Statement of Principles for Anxiety Disorder.
6. However, at the hearing Mr Denman raised a different diagnosis – adjustment disorder with anxiety and depression. Adjustment disorder and depression are already accepted conditions. In the alternative, Mr Denman submitted that he suffers from anxiety disorder. The Commission agrees with this latter diagnosis.
7. In view of the numerous concessions made by the Commission, the issues for the Tribunal to consider are the correct diagnosis of Mr Denman’s remaining psychiatric condition, if any, and whether that condition is war caused.
what is the correct diagnosis of mr denman’s remaining psychiatric condition?
8. There is a range of diagnoses of Mr Denman’s psychiatric condition, summarised below. However, all diagnoses encompass symptoms and signs of anxiety and depression, with prominence given at different times to one or the other. We are mindful that in the exercise required of the Tribunal we are examining the application of static templates (SoPs) to conditions that are, clinically, fluid and dynamic. This is particularly so in the case of psychiatric conditions, the diagnosis of which can vary greatly between psychiatrists. In Mr Denman’s case, the diagnoses that have been made are as follows:
(a)Dr Ian Hayes – generalised anxiety disorder and chronic adjustment disorder in 2006
(b)Dr Karl Koller – chronic adjustment disorder and generalised anxiety disorder in 2005 and then adjustment disorder with anxiety and depression in 2007
(c)Dr Christopher Danesi (treating psychiatrist) – anxiety disorder and major depression in 2009
(d)Dr Robert Lewin – generalised anxiety disorder and major depression in 2009
(e)Dr Anthony Dinnen – chronic adjustment disorder with both anxiety and depressed mood features in 2010
9. All of the above diagnoses encompass signs or features of anxiety and of depression. We note that Mr Denman already has major depressive disorder and adjustment disorder accepted as war caused conditions.
10. Dr Dinnen, the only psychiatrist whose evidence we heard, was of the view that Mr Denman suffers, and has always suffered, from just one psychiatric condition. He said the condition has moved, over the years, from featuring symptoms of anxiety to featuring more symptoms of depression against a background of anxiety Dr Dinnen referred to Dr Lewin’s similar view that symptoms of anxiety and depression have been interrelated over the years. He said that while Mr Denman’s anxiety remains, it has been “swamped” more recently by his depression. He noted that all of the psychiatrists described, what he called, “the same condition” in that they described the same set of signs and symptoms. He described the differences in their diagnoses as the effect of different dates of examination and “semantics”.
11. Dr Lewin, in his report of 25 November 2009, said that anxiety symptoms, including panic symptoms, can be present as part of the “syndrome” of major depression. He said that Mr Denman described almost the full diagnostic criterion set of generalised anxiety disorder and that his anxiety had fluctuated over the years. He said his pattern of tension, irritability and worry over a very long period had a gradual onset rather than an onset at any specific time. He considered it is reasonable to conclude that he has both major depressive disorder and generalised anxiety disorder. He said that adjustment disorder is usually a short term condition and that in this case, given the other diagnoses, adjustment disorder is no longer applicable.
12. The chronology of diagnoses listed above shows anxiety making way for depression in the most recent diagnoses.
13. We find attractive the approach of Dr Dinnen that Mr Denman suffers from just one condition that involves features of both depression and anxiety. However, given the statutory framework in which we must consider these matters, and given its reference to established diagnostic criteria, we consider that, regardless of how artificial it may be from a clinical standpoint, it is preferable to separate out the disease components of Mr Denman’s psychiatric condition and to isolate the disease constituted by his anxiety symptoms from the disease constituted by his depressive symptoms. We therefore find the appropriate diagnosis is that of generalised anxiety disorder and major depressive disorder. Additionally, we are persuaded by the opinion of Dr Lewin that adjustment disorder is no longer an appropriate diagnosis, given the passage of time and the entrenchment of Mr Denman’s major depressive disorder.
is mr denman’s generalised anxiety disorder war caused?
14. The SoP relevant to anxiety disorder is SoP No.101 of 2007. The factor initially relied on by Mr Denman is factor 6 (a)(v):
Factors
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service is:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified only:
…
(v) experiencing a Category 2 stressor within the one year before the clinical onset of anxiety disorder;
15. There is no dispute between the parties that Mr Denman’s experience as a gunner in Malaya was a Category 2 stressor. We agree. However, the Commission contends that the date of clinical onset of Mr Denman’s anxiety disorder was not until the 1980s.
16.
Dr Lewin was of the opinion that Mr Denman’s generalised anxiety disorder has been evident since the time of his military service. Dr Dinnen said that
Mr Denman’s generalised anxiety disorder, if that is what he has, had its clinical onset from the time he came back from Malaya. Generally, the date of clinical onset was not addressed by other psychiatrists. Neither doctor, in his report, addressed the time of onset of specific symptoms.
17. In Lees v Repatriation Commission (2002) 74 ALD 68 the Full Federal Court held that “clinical onset” requires all of the symptoms of a condition which enable a clinician to conclude that a person suffers from a condition. It was held not to be sufficient for it to be found that a process has commenced which the subsequent clinical diagnosis confirms.
18. The diagnostic criteria, or signs and symptoms, of generalised anxiety disorder are set out in the SoP, derived from DSMIV, as follows:
"generalised anxiety disorder" means a psychiatric disorder (derived from DSM-IV-TR) with the following features:
A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:
(1) restlessness or feeling keyed up or on edge
(2) being easily fatigued
(3) difficulty concentrating or mind going blank
(4) irritability
(5) muscle tension
(6) difficulty falling or staying asleep, or restless unsatisfying sleep; and
D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;
19. Despite the opinions of Drs Dinnen and Lewin, neither provided a full history of Mr Denman’s symptoms within one year of his service in Malaya. In his evidence to the Tribunal, Dr Dinnen was questioned extensively on those symptoms at that time, but he was unable to point to a history of symptoms of excessive worry, sleep disturbance, difficulty concentrating, fatigue, muscle tension, or clinically significant distress or impairment in social, occupational or other areas of functioning. He did, however, extrapolate from the history he had taken from Mr Denman and considered that his behaviour at the time of discharge, he said, indicated tension, irritability and restlessness which, in turn, indicated anxiety.
20. Dr Dinnen drew from this history symptoms of tension, irritability and restlessness. He also pointed to Mr Denman’s history of heavy drinking at that time and described that as a strong indicator of an anxiety disorder. He inferred other symptoms from the pattern of behaviour that, in retrospect, appears to have begun on discharge – in particular Mr Denman’s many short term jobs, his frequent conflict with others in the context of his employment and his inability to settle into a job.
21.
We note that Mr Denman gave evidence of having worked in telephone sales when he first returned, that he was annoyed by the people he worked with and that he left that job after six months. He then took a job in a remote geological station, but left when mining operations began and many more people arrived on the site.
Mr Denman also gave evidence of an urgent desire to leave the city where he felt the tall buildings were closing him on him and made him feel confined”, much like the jungle he had experienced in Malaya.
22. While we accept there is material pointing to significant anxiety experienced by Mr Denman on discharge, we cannot conclude that there is material pointing to the full range of diagnostic criteria for generalised anxiety disorder, or sufficient of those criteria to make a diagnosis, at the time of Mr Denman’s discharge or in the year following. The material does not point to the clinical onset of generalised anxiety disorder within one year of the Category 2 stressor.
23. However, Dr Dinnen offered the opinion that, at the time of Mr Denman’s discharge, the anxiety he suffered from could be diagnosed as anxiety disorder not otherwise specified. The diagnostic criteria for that condition is set out in the SoP as follows:
"anxiety disorder not otherwise specified" means a psychiatric disorder (derived from DSM-IV-TR) with prominent anxiety or phobic avoidance that does not meet criteria for any specific anxiety disorder, adjustment disorder with anxiety, or adjustment disorder with mixed anxiety and depressed mood.
24.
We are satisfied that Mr Denman’s distress at being in the city on his return from service points to prominent anxiety or phobic avoidance. He described his previous enjoyment of the bush but said his desire to leave the city was somehow “more” immediately after service. His likening the city to the jungle of Malaya and indicated a strong aversion and a prominent desire to avoid it. We are also mindful of his evidence of having sat, shivering on his parents’ lounge for some weeks after his return. Combined with his admitted inability to control his drinking at that time and
Dr Dinnen’s evidence that that kind of drinking is indicative of anxiety we are satisfied there is material pointing to Mr Denman having suffered from anxiety disorder not otherwise specified when he was discharged.
25. We note that factor 6(a)(vi) of the SoP provides:
The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service is:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified only
…
(iv) experiencing a Category 2 stressor within the one year before the clinical worsening of anxiety disorder;
26. This material points to a hypothesis that during operational service as a gunner in Malaya, Mr Denman experienced a Category 2 stressor. In response to that stressor he developed anxiety disorder not otherwise specified which had its clinical onset at or before the time of his discharge; and by the 1980s he developed generalised anxiety disorder. We note that both Dr Dinnen’s and Dr Lewin’s opinions point to a continuous psychiatric disorder from the time of discharge, although opinions differ as to the precise diagnosis or diagnoses along the way.
27. In any event, the hypothesis conforms with the relevant factors in the SoP (factors 6 (a) (v) and (vi)) and is thereby established as a reasonable hypothesis.
28. The Commission, as its final concession, raised no evidence that seeks to disprove the hypothesis beyond reasonable doubt. It follows that Mr Denman’s generalised anxiety disorder is war caused.
29. Given the Commission’s concession that if Mr Denman has war caused generalised anxiety disorder then he is eligible for special rate of pension, we accordingly find that he is eligible to be paid at the special rate of pension. We note that we are satisfied that Mr Denman’s psychiatric conditions, that is, his major depressive disorder and his generalised anxiety disorder have a major impact on his ability to work. The acceptance of those conditions as war caused together with his other accepted conditions means that he satisfies the requirements of section 24(1)(c) of the Veterans’ Entitlements Act 1986.
decision
30. The Tribunal sets aside the decisions under review and instead decides that Mr Denman suffers from generalised anxiety disorder; his generalised anxiety disorder is war caused; and he is eligible to be paid at the special rate of pension.
31. This decision takes effect from 9 January 2008.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member and Dr Saw Hooi Toh, Member
Signed: ...............[sgd].................................................................
AssociateDate of Hearing 27 September 2010
Date of Decision 25 November 2010
Counsel for the Applicant Mr Craig Colborne
Solicitor for the Applicant Mr Tony Latimore, Legal Aid Commission
Solicitor for the Respondent Mr Adrian Crowe, Department of Veterans' Affairs
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