Griffiths and Repatriation Commission - [2001] AATA 429

DECISION AND REASONS FOR DECISION [2001] AATA 429

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V00/409

VETERANS' APPEALS DIVISION       )
           Re      PHILIP GRIFFITHS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr I Campbell, Member Assoc. Professor Maynard, Member

Date10 May 2001
PlaceMelbourne

Decision      The Tribunal sets aside the decision under review and in substitution varies the decision of the Veterans' Review Board to provide that general anxiety disorder is war-caused and that, as the parties agreed, Mr Griffiths is entitled to payment of pension at 100% of the general rate with effect from 23 August 1998.
  (Sgd) Joan Dwyer
  Senior Member
VETERANS' AFFAIRS – anxiety condition resulting from service in Vietnam – veteran not involved in combat operations but described feeling stressed and anxious throughout service in Vietnam – no dispute on medical evidence that he had symptoms of anxiety resulting from Vietnam experience – issue only as to diagnosis and as to whether criteria in the definition in the relevant Statement of Principles were met - for clinical purposes both psychiatrists would treat veteran as suffering post-traumatic stress disorder, but his service stressor did not in the Tribunal's view meet definition of "a severe stressor" in the relevant SoP - similar considerations arose in respect of a diagnosis of adjustment disorder and definition in the SoP of "psychosocial stressor" – medical experts agreed on diagnosis of generalised anxiety disorder related to circumstances of service in Vietnam – evidence did satisfy definition of a "stressful event" – diagnosis changed – generalised anxiety disorder found to be war-caused
PRACTICE AND PROCEDURE – medical experts asked to reconsider their diagnoses to see if they could agree on one that better fitted the circumstances of veteran's service and disease
medical witnesses giving evidence together – agreement on diagnosis and connection with service
concern expressed by Tribunal and medical witnesses as to whether SoPs allow anxiety symptoms which are related to operational service to be recognised as war-caused
Veterans' Entitlements Act 1986 ss 120(1), (3), 120A

Statements of Principles Instruments No. 3 of 1999, 48 of 1994, 57 of 1996, 1 of 2000

Re Robertson and Repatriation Commission, (1998) 50 ALD 668

Repatriation Commission v Gosewinckel (1992) 28 ALD 7

REASONS FOR DECISION

10 May 2001 Mrs Joan Dwyer, Senior Member Mr I Campbell, Member Assoc. Professor Maynard, Member

This is an application for review of a decision of the Repatriation Commission made 8 June 1999, as varied by the Veterans Review Board on 24 February 2000. The Repatriation Commission had refused a claim to have post-traumatic stress disorder accepted as war caused. The Veterans Review Board varied the diagnosis to chronic adjustment disorder, and affirmed the decision as amended.
Mr Liefman appeared for the applicant. Mr Nyhof, an advocate with Department of Veterans' Affairs, appeared for the Repatriation Commission. The Tribunal had before it the documents, ("the T documents"), lodged pursuant to section 37 of the Administrative Appeals Tribunal Act and the exhibits tendered during the hearing. Mr Griffiths gave evidence. Evidence was also given by Dr Kenny and Dr Rogers. They are both psychiatrists.
Mr Griffiths served in Vietnam from 2 April 1970 to 11 March 1971. That service is operational service under the Veterans' Entitlements Act 1986 ("the Act"). Thus the relevant standard of proof is one of reasonable hypothesis as set out in s120(1) and (3) of the Act. Section 120A of the Act also applies, so that a hypothesis connecting the disease with service is reasonable only if there is in force A Statement of Principles ("SoP") which upholds the hypothesis.
When Mr Griffiths served in Vietnam he was based at Vung Tau and Saigon. He was not involved in combat operations but he described feeling stressed and anxious throughout his service in Vietnam, particularly when he rode shotgun on SDS vehicles. He also described being disturbed by the cries of injured soldiers when he was a patient in Vung Tau hospital and by the nature of messages he transmitted which concerned servicemen's injuries and death. He was present at a RAAF base when it was rocketed, but it occurred at some distance from the place where he was. In general, he said he felt vulnerable and scared during his service in Vietnam.
The matter was unusual in that the respondent had sent Mr Griffiths to Dr Kenny for diagnosis and psychiatric opinion. Dr Kenny, in a report dated 29 September 2000, (R3), diagnosed Mr Griffiths as suffering from a war-caused post-traumatic stress disorder due to his service in Vietnam. The respondent did not accept the opinion of its own medical expert.
The respondent contended, in its Statement of Facts and Contentions, that Mr Griffiths was unable to satisfy the relevant SoP for post-traumatic stress disorder, Instrument No. 3 of 1999 which in factor 5(a) requires that Mr Griffiths have experienced a "severe stressor". That is defined to mean "the person experienced, witnessed or was confronted with an event or events that involved actual or threat of death or serious injury or a threat to the person's or another person's physical integrity". The definition goes on to say:
In the setting of service in the Defence Forces, or other service where the Veterans' Entitlement Act applies, events that qualify as stressors include:
(i) threat of serious injury or death; or
(ii)engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;

The SoP also requires in criterion 2 (A) (ii):

(A)the person has been exposed to a traumatic event in which:
(ii) the person's response involved intense fear, helplessness, or horror;

The applicant's treating psychiatrist, Dr Rogers, had not made a diagnosis of post-traumatic stress disorder in his report. His first report of 29 November 1999 (T18) diagnosed chronic adjustment disorder with mixed anxiety and depressed mood precipitated by service in Vietnam. In his second report of 7 May 2000 (A1) Dr Rogers repeated that diagnosis, but added a diagnosis of alcohol abuse disorder also precipitated by service in Vietnam.
When Mr Griffiths gave evidence, he described the circumstances of his service in Vietnam and his recourse to alcohol during service to deal with his anxiety. He also described difficulty adjusting on his return to Australia. In particular, he described an inability to cope with his former employment. He said he felt anxious, restless and the walls seemed to close in on him. After a number of short-lived jobs, he realised he needed outdoors work and became a sales representative.
Mr Griffiths said that when he first got out of service he was restless and spent time in hotels, sometimes from midday to closing time. The respondent submitted that Mr Griffiths could not satisfy the SoP for adjustment disorder as Instrument No. 57 of 1996 requires an "identifiable psychosocial stressor or stressors" within three months immediately before the clinical onset of adjustment disorder. The term "psychosocial stressor" is defined to mean:
An injury, disease or occurrence that evokes in an individual feelings of substantial anxiety or stress, (for example being shot at, being involved in a motor vehicle accident, experiencing a failure or loss such as divorce; . . . )
At the end of the first day of hearing, the Tribunal was asked by Mr Nyhof to indicate whether its view, on the evidence it had heard from Mr Griffiths, was that he was unable to satisfy the factors set out in the relevant SoPs. The relevant passages in the transcript are at transcript 67, lines 17 to 19 and the Tribunal responded at transcript 69, lines 17 to 24:
MR NYHOF: If the Tribunal is of the view that the evidence so far has been that it is unable to satisfy the SOPs then why bother to listen to the evidence from the medical – medicos.
THE TRIBUNAL: Now, one could arguably say that the whole of service in Vietnam is an event or events that involve actual or threatened death or serious injury, but we have difficulty with the response being quite at the level that is required in the statement of principles on the evidence and we are not sure about the other matters, we haven't really turned our minds to those. But it seems, while we can well understand that it can be an experience that leaves effects, it just doesn't quite seem at this stage to be that sort of experience but we are not making a final ruling on that matter.
In further discussion the Tribunal suggested that expert opinion be obtained as to whether another diagnosis may better fit the circumstances of Mr Griffiths' service and disease. The parties agreed to invite Dr Kenny and Dr Rogers to reconsider their diagnoses to see if they could agree on an alternate diagnosis. The Tribunal suggested that they give evidence together at a resumed hearing. When the hearing resumed today we received further reports from Dr Rogers and Dr Kenny. Dr Rogers' report of 4 May 2001 was marked as A8 and Dr Kenny's report of 3 May 2001 was taken in as R7.
Both doctors have re-examined Mr Griffiths. They have also spoken to each other with the agreement of the parties' representatives. They wrote in their reports that they agreed that Mr Griffiths could be diagnosed as suffering from a generalised anxiety disorder related to the circumstances of his service in Vietnam. Dr Kenny, in his report, explained the new diagnosis. He wrote:
So I argue that within every post-traumatic stress disorder there is contained a Generalised Anxiety Disorder.
So in my view if one does not accept that the stressors satisfy Criterion A, then one is still left with a man who has a severe Generalised Anxiety Disorder (that we can't call post-traumatic stress disorder because he doesn't satisfy Criterion A). The point I am making is, that really he does have a severe Generalised Anxiety Disorder and that has been continuous from his time in Vietnam.
In evidence, both Dr Rogers and Dr Kenny said that Mr Griffiths had the symptoms of post-traumatic stress disorder and that it was related to his service in Vietnam. Dr Rogers expressed some doubt as to whether the service components satisfied the definition in the post-traumatic stress disorder SoP of "experiencing a severe stressor". He said that is why he had preferred the diagnosis of adjustment disorder. But that SoP also raises difficulties with regard to both the definition of the stressor and specified time limits.
In their evidence on the resumed hearing the doctors agreed on all substantial matters. They said that the three conditions - generalised anxiety disorder, chronic adjustment disorder and post-traumatic stress disorder are part of the same syndrome. Dr Kenny and Dr Rogers agreed that lessor stressors, as opposed to the major stressors listed in the post-traumatic stress disorder SoP, could have produced generalised anxiety disorder with post-traumatic stress disorder-like symptoms. It was their opinion that the SoP requirements for generalised anxiety disorder were fulfilled. Because of the date when Mr Griffiths' claim was lodged he is entitled to rely on Instrument No. 48 of 1994 for generalised anxiety disorder.
Dr Kenny wrote that the anxiety symptoms are:
Pretty well the same - whether talking about post-traumatic stress disorder or Generalised Anxiety Disorder or Chronic Adjustment Disorder.
The evidence was that for clinical purposes both Dr Rogers and Dr Kenny would regard Mr Griffiths as suffering post-traumatic stress disorder, but they both also regard him as suffering from generalised anxiety disorder. We find from their evidence that the division into the three different diseases is somewhat artificial, particularly in the context of beneficial legislation.
On the medical evidence the most applicable diagnosis is generalised anxiety disorder. The connection with service that must be established to satisfy the SoP, Instrument No. 48 of 1994, is factor 1(b), "experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder". A "stressful event" means, for this SoP, "an occurrence which evokes feelings of anxiety or stress". We find that service in Vietnam did evoke feelings of anxiety and stress in Mr Griffiths and thus constitutes a "stressful event" for the purposes of the SoP.
We find that Mr Griffiths does suffer from a war-caused generalised anxiety disorder. Dr Kenny and Dr Rogers both said he has the symptoms of such a disorder today.
Turning to the definition in paragraph 4 of the SoP, on his evidence to us and on the history he gave to the doctors, he suffers;
as to (a) excessive anxiety and worry occurring very frequently, if not constantly, about a number of events including his Vietnam service, his interpersonal relations, his domestic circumstances, his alcohol consumption, which:
(i)He finds difficult to control. He has been having psychiatric treatment and psychological counselling to help him control it.
(ii) He presently suffers from:
(A)Restlessness or feeling keyed up or on edge.
(D)Irritability.
(E)Muscle tension.
(F)Sleep disturbance.
The focus of those symptoms is not about the matters in paragraph 4(a)(iii) of the SoP.
In view of the fact that we have found that Mr Griffiths does not suffer war-caused post-traumatic stress disorder, even though we find his anxiety symptoms are war-caused, we find that his anxiety symptoms do not occur exclusively during post-traumatic stress disorder - that refers to paragraph 4(a)(iv).
We find in respect of paragraph 4(a)(v) that Mr Griffiths' anxiety and worry do cause clinically significant distress or impairment in social and domestic areas of functioning. As to paragraph 4(b) of the definition, the condition is not due to the direct physiological effects of the specified matters. We also find, that paragraph 4(c), of the definition is satisfied.
The one remaining difficulty for Mr Griffiths is to show that he experienced the stressful event of service in Vietnam, not more than two years before the clinical onset of generalised anxiety disorder. The meaning of the term "clinical onset" of a disorder was considered by the Tribunal in Re Robertson and Repatriation Commission, (1998) 50 ALD 668, where the Tribunal said:
We consider that there is a clinical onset of the disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or . . .
The question of the date of "clinical onset", as Weinberg J indicated in Repatriation Commission v Gosewinckel (1992) 28 ALD 7, requires reference to the template in the SoP. Thus, accepting that the Tribunal finds that Mr Griffiths now suffers from generalised anxiety disorder, the question is, did he have the clinical onset within two years of his return to Australia from Vietnam?
Mr Griffiths described to the Tribunal his feelings of restlessness and being on edge on his return to Australia, so that he could not stick at employment and first travelled around Australia and then looked for outdoors work. He also described heavy drinking patterns on his return to Australia and an inability to settle down. He tried to control these feelings with his marriage in 1974, but he said the marriage did not last long. Although, in those early days, he did not have the insight to recognise that he had problems, he said others did. Mr Griffiths told Dr Rogers that he has also had the symptoms of irritability, muscle tension and sleep disturbance from the time of his return to Australia. We accept that.
Those symptoms, in the opinions of Dr Kenny and Dr Rogers, indicate that Mr Griffiths had the clinical onset of his anxiety disorder during the period of two years after his return to Australia. We accept their opinions and find that Mr Griffiths' psychiatric problems are to be diagnosed as generalised anxiety disorder and are war-caused.
The decision of the Veterans' Review Board will be set aside. In substitution we will decide that generalised anxiety disorder is war-caused and that, as the parties agreed, Mr Griffiths is entitled to payment of pension at 100 per cent of the general rate from 23 August 1998.
We feel we should say that we and the psychiatrists who gave evidence found ourselves to be in a difficult position. The Act provides that, in the case of a veteran with operational service, the standard of proof to determine that a disease is war-caused is the raising of a reasonable hypothesis connecting the disease with service. Both psychiatrists were of the opinion that Mr Griffiths' psychiatric condition was connected with the circumstances of his operational service. However, a strict application of the medical definitions of disease and the definitions of stressors, as incorporated in the SoPs, created difficulties for Mr Griffiths which made the Tribunal and the doctors consider different diagnoses.
The doctors said that for clinical purposes the precise words of the diagnostic criteria are not important. They both said they would treat Mr Griffiths for post-traumatic stress disorder on the basis of his symptoms and their connection with his service in Vietnam. It is only the fact that the particular generalised anxiety disorder SoP, Instrument No. 48 of 1994, had a less arduous and specific definition of the term "stressful event" than the other SoPs, that enabled the condition to be found to be war-caused in this matter. Had Mr Griffiths' claim been lodged at a later period that definition would no longer have been available to him. Instrument No. 48 of 1994 was revoked by Instrument No. 1 of 2000 which refers to anxiety disorder. Factor 5(a)(ii) provides:
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or

"Severe psychosocial stressor" is defined as follows:

"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;

This indicates that there could be other veterans with psychiatric conditions connected with their operational service who would have difficulty satisfying the legal requirements of the SoPs. We suggest that there would be merit in a review of the SoPs relating to psychiatric conditions.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member, Mr I Campbell, Member and Associate Professor Maynard, Member
Signed:         Grace Carney
  Associate
Date/s of Hearing  10 May 2001
Date of Decision  10 May 2001
Counsel for the Applicant        Nil
Solicitor for the Applicant         Mr P Liefman
Counsel for the Respondent    Nil
Solicitor for the Respondent    Nil
Departmental Advocate           Mr E Nyhof