Harris and Repatriation Commission
[2006] AATA 357
•18 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 357
ADMINISTRATIVE APPEALS TRIBUNAL № V2005/254
VETERANS’ APPEALS DIVISION
Re: PENELOPE MARGOT HARRIS
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Dr P.D. Fricker, Member
Date:18 April 2006
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) P.D. Fricker
Member
VETERANS’ AFFAIRS – whether depressive disorder is a war-caused disease – operational service in Vietnam – interaction of reasonable satisfaction standard of proof in regard to questions of diagnosis and reasonable hypothesis standard of proof as to factors in a template when one factor is suffering from a disease from which the Tribunal has found the veteran does not suffer
Veterans' Entitlements Act 1986 ss 9, 120(1), (3) and (4)
Statement of Principles N° 53 of 2003 as amended by Instrument N° 9 of 2004 concerning Ischaemic Heart Disease
Statement of Principles N° 58 of 1998 concerning Depressive Disorder
Statement of Principles N° 21 of 2003 concerning Chronic Sinusitis
Repatriation Commission v Budworth (2001) 66 ALD 285
Benjamin v Repatriation Commission (2001) 70 ALD 622
Fogarty v Repatriation Commission [2003] FCAFC 136Repatriation Commission v Deledio (1998) 49 ALD 193
REASONS FOR DECISION
18 April 2006 Dr P.D. Fricker, Member
1. This is an application for review of a decision of the Repatriation Commission made on the 12 August 2004, which was affirmed by the Veterans Review Board (“the VRB") on 1 March 2005.
2. At the hearing on 23 February 2006 the applicant was represented by Mr Geoff Chancellor of counsel. Mr Gerry Purcell of counsel appeared on behalf of the respondent. Mrs Penelope Harris gave evidence. Dr Michael Epstein, a psychiatrist, also gave evidence on her behalf. The respondent called Mr Russell Calder, an ear, nose and throat surgeon, to give evidence.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T14), with documents tendered by the applicant (Exhibits A1‑A5) and documents tendered by the respondent (Exhibits R1‑R3).
BACKGROUND
4. Peter Joel Harris (the veteran) was born on 29 August 1947 and had operational service in Vietnam from 10 September 1969 to 18 March 1970.
5. The veteran died suddenly and unexpectedly on 5 December 2003 at the age of 56. The death certificate (T5, page 21) gave the cause of death as coronary artery atherosclerosis, based on the post mortem finding of 80per cent stenosis in the left coronary artery. In his report (T13, pages 42‑56) the examining pathologist stated at page 50:
The findings in the coronary arteries were a degree of occlusion, or blockage that is associated with sudden death from what in "lay" terms could be called a heart attack.
6. At the time of his death the veteran was receiving a disability pension at 50 per cent of the general rate, having had the following conditions accepted as war‑caused conditions: contusion of the head, acute sinusitis, chronic sinusitis and tinea.
7. The applicant, the veteran's widow, claimed pension on 27 May 2004. The applicant contended that the veteran sustained a blow to the face while serving in Vietnam and as a result suffered from sinusitis. She stated that the veteran complained of facial pain and headache that he attributed to his sinus problem and that he suffered depression as a consequence of these chronic symptoms. The applicant submitted that the veteran's death was war‑caused within the meaning of s 8 of the Veterans’ Entitlements Act 1986 (the Act). The applicant relied on the hypothesis that the veteran's war‑caused acute/chronic sinusitis resulted in his suffering from a depressive disorder that was a factor in the causation of ischaemic heart disease that resulted in his death.
8. The respondent did not dispute that the veteran suffered from chronic sinusitis, which it had accepted as war‑caused in 2001. The respondent also did not dispute that the veteran died from ischaemic heart disease, first diagnosed at autopsy, following an acute myocardial infarction.
9. Both parties agreed that the Statements of Principles (SoP) relevant to the appeal were:
·Instrument N° 21 of 2003 concerning Chronic Sinusitis;
·Instrument N° 58 of 1998 concerning Depressive Disorder; and
·Instrument N° 53 of 2003 as amended by Instrument N° 9 of 2004 concerning Ischaemic Heart Disease
10. The applicant relied on factor 5(e) of the relevant SoP concerning depressive disorder, which provides:
(e) suffering from chronic pain of at least six months duration at the time of the clinical onset of depressive disorder…
The applicant also relied on factor 5(m) of the relevant SoP concerning ischaemic heart disease, which provides:
(m) suffering from clinically significant depressive disorder for at least five years before the clinical onset of ischaemic heart disease…
11. The respondent contended that the veteran did not suffer from a clinically significant depressive disorder for at least five years before the clinical onset of ischaemic heart disease and that there is no evidence that the veteran sought any treatment for psychological problems until 2002.
12. The issues in this matter are whether Mr Harris suffered from war‑caused depressive disorder; and, if he is found to have suffered from that condition, whether the depressive disorder caused the ischaemic heart disease which caused his death.
LEGISLATION
13. The relevant standards of proof in the Act are set out in s 120(1), (3) and (4) of the Act; and its application was explained by the Full Court of the Federal Court in Fogarty v Repatriation Commission [2003] FCAFC 136 as follows:
16. Pursuant to s13(1) of the Act, the Commonwealth is liable to pay a pension to a veteran where a veteran has become incapacitated from a war-caused injury or disease. The condition of "generalised anxiety disorder" claimed by the veteran in this case is a "disease" within the meaning of the Act: see s5D(1). S9 of the Act sets out the circumstances in which a disease is taken to be war-caused. For present purposes, it suffices to note that s9(1)(a) and (b) provide, in substance, that, for the purposes of the Act, a disease contracted by a veteran shall be taken to be a war-caused disease if the disease resulted from an occurrence that happened while the veteran was rendering operational service, or the disease arose out of, or was attributable to, the veteran's eligible war service.
17. Provision is made in s120 of the Act for the standard of proof to be applied by the Commission, and on review by the Board or Tribunal, in connection with questions arising on a pension claim. The effect of s120(4) is that the Commission, or the reviewing body, must decide whether a veteran suffers, or suffered, from a disease by reference to its "reasonable satisfaction". Subs120(1) and (3) further provide:
(1) Where a claim under Pt II for a pension in respect of the incapacity from … disease of a veteran … relates to the operational service rendered by the veteran, the Commission shall determine … that the disease was a war-caused disease … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3) In applying subs(1) … in respect of the incapacity of a person from … disease … related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
…
(b) that the disease was a war-caused disease …;
…
… 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 … disease … with the circumstances of the particular service rendered by the person.
Subs 120(6) provides that nothing in the Act "shall be taken to impose … any onus of proving any matter that is, or might be, relevant to the determination of the claim …”
18.Because the veteran's claim was lodged after 1 June 1994, s120A applies to his claim: see s120A(1). Subs120A(3) relevantly provides that, for the purposes of s120(3), a hypothesis connecting a disease contracted by a veteran with the circumstances of his particular service is reasonable only if there is in force a Statement of Principles (determined under subss196B(2) or (11)) that upholds the hypothesis. A Statement of Principles ("SoP") is made by the Repatriation Medical Authority under s196B of the Act in respect of particular kinds of injury, disease or death.
14. The Full Court in Fogarty pointed out, at paragraphs 34 and 35, that when deciding whether a claimed condition is a war‑caused condition the decision maker must first determine whether the veteran suffers from that condition. This is to be established to the decision maker's reasonable satisfaction.
15. In order for a condition to be accepted as war‑caused all the conditions linked in the chain of causation must be present; that is, shown to exist on the balance of probability. If any one of the conditions in the chain of causation is not shown to be present the claim must fail.
16. Only after the Tribunal is reasonably satisfied that the veteran suffers from the claimed condition, does it apply the steps set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD193, at page 206:
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 determined by the Authority under s 196B(2) or (11)…
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
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.
THE EVIDENCE
17. The veteran was referred to a psychiatrist, Dr Carol Newlands, at the behest of a case officer, Mr Richard Embelton, from the Geelong Veterans Support Centre. Mr Embleton wrote to the veteran’s treating general practitioner, Dr Stuart Galbraith, on 5 February 2002 (Exhibit A1, page 69) as follows:
…
Now I believe Peter has been suffering from Anxiety Disorder due to medical condition of chronic sinusitis since 1970 and I would like to suggest to you to refer Peter to a Consultant Psychiatrist Dr Carol Newlands…to determine if this is the case under the sequelae criteria.
18. Dr Galbraith, who had seen the veteran on a regular basis over a period of 13 years, in making the referral on 11 February 2002 ( Exhibit A1, page 65), wrote:
…Thankyou for seeing Peter re his anxiety disorder and whether this is related to his Vietnam experiences.
19. Dr Newlands saw the veteran on several occasions, on at least one occasion with his wife. In her notes she recorded (Exhibit A1, page 59): worries ++… irritability…poor sleep and past D.U due to [increased] acidity. She noted at interview that the veteran perspired, stammered and blushed. She recorded that he worried about his work performance and concluded that the criteria for anxiety appeared to be fulfilled. On 15 May 2002 she wrote to Mr Embelton (Exhibit A1, pages 54‑55):
…
As you are aware, Peter is extremely anxious, and becomes very irritable, as a result of repeated attacks of sinusitis. He sees his sinusitis as having been a pressure in his life, preventing him from doing things…
…Now, he tends to get very panicky about things, and will also procrastinate, or become over organised. He often feels overwhelmed by things, and unsure where to begin. He has poor sleep, and feels indecisive.
He worries about work, about performing well, about people being critical of his performance, and he also doubts his own ability. Thus, he certainly appears to have an anxiety problem. However, I wonder if this might more accurately be described as a reactive depression, or anxiety/depression, as a result of having the sinusitis.
The reason I wonder about this, is because the requirement for anxiety following a medical condition, is the direct physiological consequence, and also the fact that, in my understanding, there is a notion of the medical condition having a degree of being irremediable. For example, a cancer, or some severe potentially threatening illness, which would not be the case with chronic sinusitis.
20. On 13 June 2002, Dr Newlands wrote to Dr Galbraith with her findings (Exhibit A1, page 51):
…
Having assessed this gentleman and discussed his symptoms with him, I feel he undoubtedly has a disorder characterised by anxiety, feelings of panic, and being generally overwhelmed.
However, in attempting to find a link between his service in Vietnam, and his symptoms, I find this is rather difficult, and would not be able to see any direct link…
…Nonetheless, I do feel Mr. Harris' anxiety warrants treatment, and to that extent, have commenced him on Zoloft 50mg per day, which he has found to be beneficial…
21. Dr Galbraith's clinical notes between October 1990 and November 2003 formed part of the evidence (Exhibit A5). Despite regular attendances and references to numerous presentations including respiratory tract infections, sinusitis and dyspepsia, there is no reference to a psychiatric or psychological condition in these notes, not even at the time Dr Galbraith made the referral to Dr Newlands or at the time Dr Newlands sent her opinion back to him.
22. After the veteran's death, Dr Newlands again wrote to Mr Embleton. In a letter dated 27 October 2004 (Exhibit A1, page 49) she stated:
…
It is interesting, that he himself, felt he had anxiety, and described symptoms to this end, rather than depression, when I saw him. However, the information provided by his wife, would certainly suggest that there was a depressive element also, and as such, it may be of value to see her and get further information.
23. Mrs Harris gave evidence that her husband had problems with his sinuses over many years. He often complained of being stuffed up and not able to breathe properly. His nose ran uncontrollably at times. She said that he had more attacks in winter, when they occurred monthly. Although sometimes he did not go to the doctor, when he did, he would require several courses of antibiotics to clear up the symptoms. When he was uncomfortable he did not work around the house or go out socially. He would take only two or three days off work out of a sense of obligation to his employer. Mrs Harris said that when the veteran was not having sinus attacks he was a very loving and caring husband and father and the family spent a lot of time together. He did a lot of things with his sons including going to sporting fixtures with them. She described him as always being fairly volatile but when he was unwell he was worse. When he was in pain, he would eventually go to the doctor to get relief. There were times when he was very irritable and argumentative and this created tension. She referred to his having an active social life, but there were occasions on which he did not want to attend functions because he did not feel well enough. She said he had a short fuse, was easily irritated and anxious about not being able to do things. His symptoms seemed to get worse in the last two winters, when he had frequent bouts of sinusitis and took time off from school. He kept up his interest in sailing and walking with friends.
24. Mr Calder gave evidence by telephone. He was consulted by the veteran between 24 May 1994 and 24 September 2002. He said that the veteran suffered from pain as a result of chronic left maxillary sinusitis. He described the pain as continuous with intermittent flare ups. He said there may have been periods where the pain may have been relatively mild.
25. Dr Epstein said that he thought the veteran had a depressive disorder. In his report dated 27 July 2005 (Exhibit A3, page 5) he stated:
…His widow now states that he had periods of irritability but generally was a gregarious outgoing sociable person. It is difficult to point to any symptoms characteristic of depression until the 1980's when his widow noted that after failed sinus surgery he became quite despondent at times when he was experiencing sinus pain. This appears to have been a reactive depression [emphasis added] to pain and discomfort.
26. In his oral evidence Dr Epstein agreed that depression came in various forms such as Major Depressive Disorder, Dysthymic Disorder and Depression Not Otherwise Specified. He agreed that the veteran had not been suffering from Major Depressive Disorder. Dr Epstein said that reactive depression was a generic term that did not appear in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (“DSM IV”). He said that he thought that Dysthymic Disorder probably would be the more appropriate term. When Dr Epstein was asked why he had not used the term in his report he said that, on the basis of the information he had available to him at the time and the fact that he did not see the veteran, he had qualms about being more specific. He agreed that he had not made a DSM IV diagnosis as there was no material on which to base such a diagnosis. He agreed that a psychiatrist is heavily dependent on observation of the patient and that the observations of a third party may not necessarily provide a sound diagnosis. He said that for symptoms to be sufficient to warrant ongoing management did not mean that there had been such management. With respect to the absence of the record of any psychiatric symptoms in Dr Galbraith's notes, Dr Epstein said that men focus on physical symptoms and until recently the general practitioner recognition rate of psychiatric conditions had been very low. Dr Epstein agreed that it may have been that the condition had not been significant but the absence of recorded symptoms did not exclude it.
THE ISSUE WHETHER MR HARRIS SUFFERED FROM DEPRESSION
27. As discussed above the Tribunal must determine whether a veteran suffers from a “claimed disease” and that issue must be decided to the “reasonable satisfaction” of the decision‑maker in accordance with s 120(4) of the Act.
28. In Benjamin v Repatriation Commission (2001) 70 ALD 622 the Full Court of the Federal Court explained that, although the SoPs must be used in regard to deciding whether or not a disease is war‑caused, they are not relevant to the issue of diagnosis of a claimed condition. The Full Court said in Benjamin at para 41:
…exposure to a traumatic event was the primary criterion required for the diagnosis of post traumatic stress disorder. The tribunal made its diagnosis by reference to SoP 15 of 1994. His Honour correctly held that to be impermissible, as the scheme of the Act contemplates that SoPs be used to determine the standard of proof. SoPs are not relevant to the question of diagnosis. However, the similarity of the definition in SoP 15 of 1994 to the criteria in DSM-IV led his Honour to the conclusion that the tribunal's error was of no practical consequence whatsoever.
29. I therefore must consider the evidence as to whether or not Mr Harris suffered from depression according to the diagnostic criteria set out in the DSM-IV. In this exercise I am guided by the opinion expressed by the psychiatrist who examined the veteran, Dr Newlands, and the opinion of Dr Epstein who provided a report and gave evidence at the hearing, together with the other sources referred to above.
30. In arriving at my decision I carefully considered all the evidence presented. I placed particular reliance on the letter of Dr Newlands to Dr Galbraith dated 13 June 2002 in which Dr Newland's opined that the veteran was suffering from anxiety. I rely on this letter because Dr Newlands examined the veteran psychiatrically immediately prior to expressing this opinion and had the opportunity to see him on a number of occasions, at least one of which was in the company of the applicant. Dr Newlands considered the diagnosis of depression; but not, it would appear, because the veteran's symptoms warranted it, but because, as she indicated on 15 May 2002, she was exploring a way to assist the veteran in establishing a link between chronic sinus pain and psychiatric symptoms. In my view the letter of 13 June 2002 establishes that Dr Newlands was unable to diagnose depression. I note that Dr Newlands prescribed Zoloft. Although Zoloft is used for the treatment of depression, there is no indication from Dr Newland's notes or communications that she prescribed Zoloft to treat depression. In her letter of 13 June 2002 it was the veteran's anxiety that she considered warranted treatment "…and to that extent…" Zoloft was the medication she chose. In her letter of 27 October 2004 to Mr Embleton she confirmed that when she saw the veteran he described symptoms of anxiety rather than depression.
31. In oral evidence Dr Epstein agreed with Mr Purcell that a psychiatrist is heavily dependent on observation of the patient and that the observations of a third party may not necessarily be relied upon for a sound diagnosis. Mindful of this, I was less persuaded by Dr Newlands changed opinion two years later, based not on direct observation of the patient, but on the observations of a third party, when it was established that the veteran would need to have had a diagnosis of depression in order to establish a link between his sinus condition and his death. The fact that Dr Newlands could not be contacted to be questioned about her reasons for the change made reliance on this later opinion even more unsafe.
32. I agree with Dr Epstein's comment during cross‑examination that the absence of any reference to psychological symptoms in Dr Galbraith's notes does not exclude their being significant. I note that Dr Epstein was "astonished" that there was no reference in Dr Galbraith's notes to any difficulties, or notes of negative findings around the date that he received Dr Newland's opinion. However, the only finding I can make is that Dr Galbraith's notes give no support to the veteran's suffering from a significant psychiatric condition.
33. For the reasons discussed I was unable to find on the balance of probability that the veteran suffered from depression as defined in DSM IV. Thus it is has not been established that the veteran was suffering from one of the conditions claimed by the applicant and necessary to establish the chain of causation from the veteran's service to his death from ischaemic heart disease. I therefore find that the veteran's death from ischaemic heart disease was not war‑caused.
34. The Tribunal affirms the decision under review.
I certify that the thirty‑four [34] preceding paragraphs are a true copy of the reasons for the decision of:
P.D. Fricker, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of hearing: 23 February 2006
Date of decision: 18 April 2006
Counsel for the applicant: Mr G. Chancellor
Solicitor for the applicant: Williams Winter Solicitors
Counsel for the respondent: Mr G. Purcell
Solicitor for the respondent: Ms T. Chant, Department of Veterans’ Affairs
0
3
0