French and Repatriation Commission (Veterans' entitlements)

[2017] AATA 297

French and Repatriation Commission (Veterans' entitlements) [2017] AATA 297 (8 March 2017)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2015/0972

Re:Brian French

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:8 March 2017

Place:Sydney

The reviewable decision, being the decision of the Repatriation Commission made 17 April 2014 refusing Mr French’s claim in respect of Generalised Anxiety Disorder, is affirmed.

....................................[sgd]....................................

Deputy President J W Constance

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements Act 1986 – service related-condition – war-caused injury – whether applicant rendered operational service – Statement of Principles – reasonable satisfaction – whether applicant suffered generalised anxiety disorder – decision affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 9, 120, 120A, 120B

CASES

Benjamin v Repatriation Commission [2001] FCA 1879

Repatriation Commission v Bawden [2012] FCAFC 176

Repatriation Commission v Deledio [1998] FCA 391

SECONDARY MATERIALS

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013)

REASONS FOR DECISION

Deputy President J W Constance

8 March 2017

A:  INTRODUCTION

1. On 7 February 2013 Mr French made an application for Generalised Anxiety Disorder to be accepted as a service-related condition in accordance with the Veterans’ Entitlements Act 1986 (Cth). He claimed he has suffered, and continues to suffer the condition arising out of service he rendered as a member of the Royal Australian Navy.

2. On 17 April 2014 the Repatriation Commission refused the claim.[1] This decision was affirmed by the Veterans’ Review Board on 16 December 2014. 

   [1] Exhibit R1 p.123.

3. Mr French has applied to the Tribunal to review the Commission’s decision.

4. For the reasons which follow the decisions under review will be affirmed.

   B:  BACKGROUND

5. Unless stated otherwise the following findings of fact are based on the evidence of Mr French.

6. Mr French joined the Royal Australian Navy on 4 January 1967 when he was 16 years old. Between 21 October 1970 and 16 October 1971 he made five trips into Vietnamese waters on board HMAS SYDNEY during the Vietnam War. During his service in the Navy Mr French was involved in several incidents, each of which caused him to feel distressed.

7. In 1969 Mr French was required by a Navy officer to attend a morgue and identify the body of a mate with whom he served who had been killed in a motorcycle accident. This incident was very distressing at the time and still causes him significant distress when he recalls the circumstances.

8. On the first trip to Vietnam, when HMAS SYDNEY was in Vietnamese waters, Mr French experienced, for the first time, multiple scare charges being detonated off the ship. He had not been given any warning or training in relation to the use of these charges previously. He was below deck at the time.

9. When he gave evidence Mr French described his reaction:

   They go off, it’s a massive explosion, you’re a young lad, first time in the war zone, you’re expecting the worst, you hear a massive explosion and, like I said, your natural reactions take over.  It takes some time to settle down.[2]… I threw it up on deck, I think, from memory.  I’m thinking back a long way.  I can’t be dead accurate on exactly what happened.  I can’t remember whether I said anything or done anything below decks, I can’t remember whether I left my tool bag or what now.  I know I came flying out and I was not in a good way… I was panicking.  It took some time to settle down… I know I was asking questions; I know it was explained what was going on somewhere along the line.[3]… The feeling stays with me, but lessens over time, but the feelings are still there.  I still remember what, you know, how I felt at the time…  If you’ve been to there you’ll think of panic. You go through a mixed range of things, explanations, looking for reasons, looking for results, you know, where you stand, how safe you are…  Worst case scenario, you’re going to go down.  Explosives below the water line are never good for a ship… You’re in enemy waters and you’ve been blown up, I would say the main thing is you’re going to die.[4]

   [2] Transcript 19/9/2016 p-16.

   [3] Transcript 19/9/2016 p-17.

   [4] Transcript 19/9/2016 p-19.

10. On one of the trips to Vietnam Mr French was required to operate the winch which lowered and raised a rescue boat after a crew member jumped overboard.  The man was recovered alive, but was non-responsive when the rescue boat was raised. Mr French was present when he was put onto the deck and then taken to the sick bay. At the time Mr French felt confused, worried and concerned.  He is unable to say how long these feelings continued.

11. Another incident occurred while HMAS SYDNEY was in Vietnamese waters and which caused Mr French considerable distress. He was standing on a barge beside the ship when he witnessed an Army sergeant assault an Asian man who was assisting with the unloading of supplies. The sergeant grabbed the man by the neck and struck his head against the side of the ship several times. Mr French saw that the man was bleeding heavily about his head. He felt disgusted by the incident as well as a sense of being useless as he could do nothing to prevent the assault.

12. In March 1972 Mr French was on board HMAS DUCHESS in Hong Kong Harbour when he discovered three men who had been overcome by fumes while working in a confined space. Using Normal Air Breathing Apparatus he was able to rescue one of the men and assist another before he was himself overwhelmed by the fumes and collapsed on deck.  As only one of the three breathing apparatus on board was working it was necessary to wait for the ship’s diver to complete the rescue.

13. Mr French described his reaction as follows:

    During the rescue and for a short time after, not with-standing the heat and conditions, I felt good in that I had responded in a manner to which I had been trained and assisted in the saving of lives, but when I was required to and subsequently wrote a report regarding the incident I was abused by an Officer for the report, I felt really terrible, I felt disrespected, belittled and unsupported. It caused me distress and I questioned my own self-worth.”[5]

    [5] Exhibit A1 para.2.

14. Mr French also gave evidence of an incident when he was on board during a voyage to the United States. On that occasion a junior crew member who worked with Mr French deliberately left the ship in a life raft during the night. A 24-hour search failed to find the sailor. He was located one week later and rescued by another ship. Mr French was concerned by this incident.

15. The living conditions on board HMAS SYDNEY also caused Mr French concern. He described them as “atrocious”.[6] 

    [6] Exhibit A1.

16. Mr French joined the Naval Police in mid-1976, two and a half years before he was due to be discharged from the Navy. He did this because he wanted to leave HMAS SYDNEY and because he was married with a young family. He served as a member of the Naval Police until he was discharged from the Navy on 3 January 1979.

17. It is Mr French’s opinion that his anxieties “started with the death of Frank [in 1969] and continued throughout my naval career, made worse by both VRB and AAT.” [7]

    [7] Exhibit A1.

18. After he left the Navy Mr French worked on a chicken farm for a few months. He then joined a local Council and was promoted to the position of Overhead Linesman. He worked for the Council for about two years.

19. For the next 12 years Mr French worked as a farmhand for various employers in the central west of New South Wales. He then returned to suburban Sydney where he worked as an ambulance officer for three to four years. Shortly after he returned to Sydney he separated from his wife.

20. When he was living in Sydney after moving from western New South Wales he consulted a doctor and discussed his suffering Obsessive Compulsive Disorder. He did not receive treatment. He also attended a discussion group in relation to this condition.

21. Not long after separating from his wife Mr French moved to Taree in New South Wales.  He gained employment as an Assistant Nurse in a Nursing Home and as a taxi driver.  After moving to Taree Mr French sought medical advice and was referred to Dr Koller, Consultant Psychiatrist in 2008.

    B:  LEGISLATION

    B.1  War-caused injury

22. Section 9 of the Act sets out the circumstances in which an injury is taken to be "war‑caused". The relevant parts of that section are:

    War caused injuries or diseases

    (1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

    (a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

    (b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

    …

    (e)the injury suffered, or disease contracted, by the veteran:

    (i)     was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

    (ii)     was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service,

    and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible  war service rendered by the veteran, being service rendered after the veteran suffered the injury or contracted the disease;  but not otherwise.

    B.2   Standard of proof when claimed injury or disease said to arise out of operational service

23. Section 120 provides, in part:

    Standard of proof

    (1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war caused injury, that the disease was a war caused disease or that the death of the veteran was war caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

    Note:     This subsection is affected by section 120A.

    …

    (3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

    (a)that the injury was a war caused injury or a defence caused injury;

    (b)that the disease was a war caused disease or a defence caused disease; or

    (c)that the death was war caused or defence caused;

    as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

    Note:     This subsection is affected by section 120A.

    …

    (6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

    (a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

    (b)the Commonwealth, the Department or any other person in relation to such a claim or application;

    any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.

    Reasonableness of hypothesis to be assessed by reference to Statement of Principles

24. Subsection 120A(3) provides:

    For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

    (a)a Statement of Principles determined under subsection 196B(2) or (11); or

    (b)a determination of the Commission under subsection 180A(2);

    that upholds the hypothesis.

25. Subsection 120A(4) provides:

    Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

    (a)the kind of injury suffered by the person; or

    (b)the kind of disease contracted by the person; or

    (c)the kind of death met by the person;

    as the case may be.

    C:  THE DELEDIO PRINCIPLES

26. In Repatriation Commission v Deledio[8]  the Full Court of the Federal Court set out the steps to be taken in determining claims which arise from operational service once any issues relating to the type of service and the diagnosis of the condition suffered by the claimant have been determined. The Full Court said:

    1.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.

    2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] 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.

    3.If a 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.

    4.The Tribunal must then proceed to consider under s 120(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.

    [8] (1998) 83 FCR 82, 97; [1998] FCA 391 (22 April 1998).

    D:  ISSUES FOR DETERMINATION

27. I have to determine the following issues:

    (1)       Did Mr French render operational service and if so, when?

    (2)Does Mr French suffer from Generalised Anxiety Disorder or other relevant      condition?

    (3)       If he does, when was the clinical onset of the condition or conditions?

    (4)If he does, considering all the material before the Tribunal, does it point to a hypothesis connecting the Generalised Anxiety Disorder or other relevant condition with the circumstances of the operational service?

    (5)If such a hypothesis is raised, is there a relevant Statement of Principles in force?

    (6)If a relevant Statement of Principles is in force, is the hypothesis consistent with the “template” within that Statement and therefore a reasonable one?

    (7)If so, considering section 120(1), am I satisfied beyond reasonable doubt that the disease suffered by Mr French was not war-caused?

    E:  CONSIDERATION OF THE ISSUES

    Issue 1:  Did Mr French render operational service and if so, when?

28. It is not in dispute that Mr French rendered operational service on board HMAS SYDNEY as follows:

    ·between  21 October 1970 and 12 November 1970;

    ·between 15 February 1971 and 4 March 1971;

    ·between 26 March 1971 and 8 April 1971;

    ·between 13 May 1971 and 1 June 1971;

    ·between 20 September 1971 and 16 October 1971.

    Issue 2:  Does Mr French suffer from Generalised Anxiety Disorder or other relevant condition?

    The issue is to be determined according to the standard of “reasonable satisfaction”

29. The question of whether Mr French suffers from Generalised Anxiety Disorder or other relevant condition is to be decided according to the standard of “reasonable satisfaction” set out in subsection 120(4) of the Act.  I have to be satisfied that Mr French suffers a collection of symptoms that constitute a “disease” for the purposes of the Act.[9]

    [9] Repatriation Commission v Bawden [2012] FCAFC 176 para.43.

30. The question of diagnosis of a claimed condition is not made by reference to a Statement of Principles relating to such a condition. The scheme of the Act is such that a Statement of Principles is used to determine the standard of proof, not diagnosis.[10]

    [10] Benjamin v Repatriation Commission [2001] FCA 1879.

    Evidence of Mr French

31. I have set out part of the evidence of Mr French under the heading BACKGROUND, which includes his reaction to various stressful events he experienced while a member of the Navy.  He also gave evidence as to the distress caused to him by the manner in which he perceives his application has been dealt with by the Repatriation Commission, the Veterans’ Review Board and this Tribunal.  In his view:

    The result of this case which has been going on for eight years through the VRB, four years through the AAT, a lot of that has affected me in that I am now obsessed by it, by the incompetence of the way it’s been handled so I have to battle everyday just to stay alive. I came close – Dr Koller, I think his actual wording was, “One more word out of you and I’ll get you locked up”.  My counsellor on two occasions wanted to have me locked up. The lass that done the VRB course suggested I go into the psych ward and once I drove myself out there.[11]

    [11] Transcript 19/09/16 p-47.

    Evidence of Dr Koller, Consultant Psychiatrist

32. Dr Koller has been Mr French’s treating psychiatrist since 2008.  He gave evidence and provided the following reports:

    ·1 July 2008;[12]

    ·31 August 2012;[13]

    ·14 October 2014;[14]

    ·23 September 2015;[15]

    ·15 December 2015.[16]

    [12] Exhibit A2.

    [13] Exhibit A3.

    [14] Exhibit A4.

    [15] Exhibit A5.

    [16] Exhibit A6.

33. Mr French was referred to Dr Koller by his General Practitioner, Dr Johnson, in 2008.

34. In July 2008 Dr Koller diagnosed Mr French as suffering from Generalised Anxiety Disorder.  At the time Mr French reported that he was experiencing “excess worry and anxiety, feeling tension, irritability, sleep disorder, poor concentration.”[17]

    [17] Exhibit A2.

35. In his report of 14 October 2014 Dr Koller stated:

    He never really settled down, he changed jobs.  He has been a taxi driver, an ambulance driver, a lines man, a policeman.  Always on the move and always reporting poor sleep, poor concentration, tenseness.[18]

    [18] Exhibit A4.

36. When he gave evidence Dr Koller confirmed that his reference to Mr French “always reporting” was a reference to Mr French reporting to him, not other practitioners.[19]  Mr French told Dr Koller that he had been suffering these symptoms “since the Navy.”[20]

    [19] Transcript 19/09/16 p-69.

    [20] Transcript 16/09/16 p-70.

1. In the opinion of Dr Koller the disorder occurred in the period 1971-1976.[21]

   Service Psychological Records [22]

   [21] Exhibit A5.

   [22] Exhibit R2.

2. These records relate to assessments of Mr French prior to his joining the Navy and at the time he applied to join the Naval Police in 1976.

3. The notes of an interview on 13 May 1976 include:

   Thinking about NP for 12/12 – has 2 ½ years left and wants to guarantee that he will be in Sydney for this time (no separatn from w since marriage) Regards NP as a secure job where he will have the chance to go to Tech to get a trade qual for later on.

   ……

   Overall a level-headed guy with a no-nonsense approach as to why he wants NP.[23]

   [23] Exhibit R2.

4. The report notes that Mr French was interviewed by a psychologist and a naval police officer and assessed as suitable for transfer to the Naval Police branch.

   Evidence of Dr Roberts, Consultant Forensic Psychiatrist

5. Dr Roberts assessed Mr French at the request of the Department of Veterans’ Affairs in March 2011. He provided a report dated 30 April 2011[24] and gave evidence.

   [24] Exhibit R1 p.48.

6. Dr Roberts reported that:

   … I attempted to elicit from Mr French evidence of physiological concomitants of anxiety namely such symptomatology as would be present in someone who was suffering from significantly heightened anxiety regardless of cause. The questions were posed in a leading manner and it was emphasised that they applied to the totality of his existence, namely at any time in his life from the date of his birth until the date of attendance, both before and after the onset of his current alleged disabilities.

   The reason for asking such questions is as follows – if it were assumed that Mr French had developed a Reactive state, such a reactive state would come under the broad heading of a reactive neurosis. All neuroses without exception are characterised by heightened inappropriate anxiety, which in turn gives rise to the inevitable physiological concomitants of such a state. It is a useful means of attempting to ascertain whether heightened anxiety is present or not to look for the pathognomonic signs of heightened anxiety, namely the physiological concomitants of such a state. If heightened anxiety of inappropriate degree cannot be demonstrated no reactive state can be diagnosed.

   Reactive states under consideration include among others – Post-traumatic stress disorder, Dysthymic states, Phobic Anxiety states, Adjustment disorders, and Somatoform disorders among others.[25]

   [25] Exhibit R1 pp 51-52.

7. Under the heading “Mental Status” Dr Roberts reported that Mr French’s “general demeanour was that of an angry man, his anger being primarily directed towards the VRB.  There was no evidence otherwise of any abnormality of mood, the thought content was consistent with an angry man, there was no evidence of psychosis, he is grossly cognitively intact on clinical grounds, a subtle disturbance has not been assessed.” [26]

   [26] Exhibit R1 p.57.

8. In the opinion of Dr Roberts, at the time of the assessment, Mr French did not fulfil the diagnosis of Generalised Anxiety Disorder:

   … as while he describes to some degree excessive anxiety and worry, and at times finds it difficult to control such worries, there are times when he is clearly free of such worry. The impression gain [sic] at interview was that Mr French’s towards anxiety arises in the context of a tendency towards obsessionality and I note that he described himself as a “checker”, that he intends to check everything, but did not give examples, he described as taking him a lengthy time to leave the house.

   In considering Obsessive Compulsive Disorder, this is currently considered in the DSM-IV as a sub-type of anxiety disorders. While Mr French has certain symptoms of heightened anxiety and obsessionality, these appears to be not constantly present and are related only to specific circumstances, namely when Mr French as [sic] to leave the house and is in areas and environments that are unfamiliar to him.[27]

   [27] Exhibit R1 p.58.

   Discussion

9. Having considered all of the evidence (including the opinions of Dr Koller and Dr Roberts) I am not reasonably satisfied that Mr French suffers from Generalised Anxiety Disorder or any other condition which could be claimed to have arisen from his service in the Navy and which has not been already accepted as war-caused.

10. In reaching this conclusion I have considered the diagnostic criteria set out in the Diagnostic and Statistical Manual of Mental Disorders 5^th Edition published by the American Psychiatric Association.  These were the criteria referred to by Dr Roberts when he gave evidence.

11. Criteria A, B, C and D set out in the Manual are of particular relevance in this matter.  They provide:

    A.Excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least 6 months, about a number of events or activities (such as work or school performance).

    B.The individual finds it difficult to control the worry.

    C.The anxiety and worry are associated with three (or more) of the following six symptoms (with at least some symptoms having been present for more days than not for the past 6 months):

    Note: Only one item is required in children.

    1. Restlessness or feeling keyed up or on edge.

    2. Being easily fatigued.

    3. Difficulty concentrating or going blank.

    4. Irritability.

    5. Muscle tension.

    6. Sleep disturbance (difficulty falling or staying asleep, or restless, unsatisfying sleep).

    D.The anxiety, worry, or physical symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.[28]

    [28] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5^th ed, 2013) 222.

12. I have given very careful consideration to the opinion of Dr Koller, particularly as he has been Mr French’s treating practitioner for the last nine years and has had the opportunity to observe his progress during that time.  However there are several factors which have caused me to conclude that I cannot be reasonably satisfied that his diagnosis of Mr French’s condition is correct.

13. Dr Koller failed to adequately explain his opinion that Mr French met criterion A referred to above. When pressed as to the basis of his opinion the following exchange took place between Dr Koller and Counsel for the Commission:

    Dr Koller, you have taken a history of certain, as you say, problems that happened during service, and it seems to me that your opinion about his current condition is based on those problems, is that correct? --- Well, where else would they have come from?  I mean the logic would be, where else would they come from?  A man enters the navy fit and well, comes out of the navy with complaints.

    …

    The answer was he enters the navy fit and well.  He come out of the navy with a plethora of problems, all sorts of life problems set in. So one would obviously think, well, I do anyhow, that there was some problem in the navy to bring that all about.[29]

    When asked to identify the “plethora of problems” suffered by Mr French, Dr Koller referred to the incidents which Mr French had experienced rather than any problems which he considered Mr French had experienced as a result of those events.

    [29] Transcript 19/09/16 pp-70-71.

14. Dr Koller was adamant that Mr French had developed Generalised Anxiety Disorder sometime during his naval career. However, rather than identifying the signs and/or symptoms which indicated that Mr French had developed the condition during that time, Dr Koller stated that the condition must have developed within two years of the events which concerned or distressed Mr French. There is no evidence to support this proposition.

15. Further Dr Koller did not consider it necessary to take a detailed history from Mr French, particularly as to his condition when he joined the Naval Police or in the years following his discharge from the Navy.[30]  Dr Koller said that he does not know how Mr French was during the 12 years he worked in western New South Wales as he has never asked.[31]  He knew that Mr French had worked in a Nursing Home but he had not explored that.[32]

    [30] Transcript 19/09/16 p-70.

    [31] Transcript 19/09/16 p-66.

    [32] Transcript 19/09/16 p-68.

16. When Dr Roberts assessed Mr French in 2011 he took a history which indicated that there were significant times when Mr French was free of the worry he described.

17. Dr Roberts’ report was in evidence at the hearing of this matter on 19 September 2016.  However in view of the marked difference between his opinion and that of Dr Koller and the importance of that difference, I requested Counsel for the Commission to arrange for Dr Roberts to give evidence. 

18. Prior to Dr Roberts giving evidence on 24 November 2016 he had the opportunity to consider all of Dr Koller’s reports and the transcript of the evidence given at the hearing on 19 September 2016. This included Mr French’s evidence. Having heard Dr Roberts give evidence I am satisfied that he did so in an objective manner notwithstanding allegations which had been made against him by Mr French after he issued his report of 30 April 2011.

19. Dr Roberts said that it is abnormal for a person not to be upset by distressing situations such as those experienced by Mr French. He described this as a “normative situation”.  The essence of Generalised Anxiety Disorder is pathological worry, far greater than normal worry about day to day living circumstances. In his opinion Mr French was stressed and worried by these events but not to such an extent as to be a matter of psychopathology.

20. Further, it is the opinion of Dr Roberts that if Mr French had developed any three of the six symptoms set out in criterion C in 1976 they would have been detected by a psychologist, yet Mr French was given a “clean bill of health”[33] when he was assessed prior to his transferring to the Naval Police. Further, it is Dr Roberts’ opinion there is no evidence of the “significant distress or impairment” in the areas of functioning required by criterion D.

    [33] Transcript 26/11/16.

21. Having considered the evidence of both practitioners I prefer the opinions of Dr Roberts to those of Dr Koller for the reasons I have given. However I wish to make it clear that I do not need to be satisfied that Mr French does not suffer the claimed condition. As I have said earlier in these reasons, I need to be reasonably satisfied that Mr French does suffer that condition. Based on the evidence of Dr Roberts I cannot be so satisfied.

22. I have considered whether, on the evidence before me, Mr French suffers from any other condition which could reasonably be found to have arisen from his naval service.  There is no evidence which justifies such a finding.

    Issues 3-7 set out in paragraph 27 of these reasons

23. As I have not been satisfied that Mr French has suffered the claimed condition at any time the remaining issues do not require consideration.

    CONCLUSION

24. The reviewable decision, being the decision of the Repatriation Commission made 17 April 2014 refusing Mr French’s claim in respect of Generalised Anxiety Disorder, will be affirmed.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

...................................[sgd].....................................

Associate

Dated: 8 March 2017

Date(s) of hearing:	19 September 2016, 24 November 2016
Applicant:	In person and by telephone
Solicitors for the Respondent:	Moray & Agnew Lawyers