Harris and Repatriation Commission
[2004] AATA 213
•2 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 213
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/206
VETERANS' APPEALS DIVISION )
Re ALICE HARRIS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date2 March 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ....................(Sgd).....................
O Rinaudo
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war widow’s pension – death from ischaemic heart disease – whether veteran suffered from panic disorder – whether veteran’s condition war caused – whether reasonable hypothesis raised
Veterans’ Entitlements Act 1986 ss 8, 120A(3)
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
2 March 2004 Mr O Rinaudo, Member 1. This is an application by Mrs Alice Harris (the applicant) for a review of the decision of the Veterans’ Review Board, dated 25 January 2000, which affirmed the decision of a delegate of the Repatriation Commission, dated 31 march 1999, rejecting a claim for a war widow’s pension on the basis that the veterans death was not war caused.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, marked as Exhibit 1, and the following documentary evidence:
§ Exhibit 2 Statement of Alice Harris, dated 12 June 2000
§ Exhibit 3 Report of Dr J Carter, dated 23 July 2002
§ Exhibit 4 Letter from Judith Harris to Gilshenan and Luton
Lawyers, dated 2 March 2003
§ Exhibit 5 Letter from Robyn Harris to Gilshenan and Luton
Lawyers, dated 3 March 2003
§ Exhibit 6 Report of Dr JFR Love, dated 16 September 2000
§ Exhibit 7 Report of Dr JFR Love, dated 21 October 2000
§ Exhibit 8 Report of Dr P Mulholland, dated 30 November
2000
§ Exhibit 9 Admission notes from Prince Charles Hospital dated 20
February 1991
§ Exhibit 10 Three reports of Dr Grant, dated 15 2000, 22 June 2000
and 3 October 2000
§ Exhibit 11 Letter from Valerie Farmer to Gilshenan and Luton
Lawyers, dated 2 march 2003
§ Exhibit 12 Continuation Progress Notes from Prince Charles
Hospital, dated 30 April 1993
3. The applicant was represented by Mr A Harding of Counsel and the respondent was represented by Mr M Smith, Departmental Advocate.
4. The applicant gave oral evidence as did her daughters Robyn Harris and Judith Harris and a family friend Valerie Farmer. Dr J Carter, Dr JFR Love and Dr P Mulholland also gave evidence.
5. Under section 13 of the Veterans’ Entitlements Act 1986 (the Act) the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, where the death of the veteran is war caused. A dependant of a deceased veteran, including a widow (section 11 of the Act), may make a claim to a pension under section 14 of the Act.
6. The veteran was born on 6 May 1915 and served in the Australian Army from 18 December 1941 to 4 December 1945, including service overseas. As such the whole of his service constitutes operational service.
7. The applicant met the veteran in 1939 and they were married in 1944. The veteran died on 1 August 1998, aged 83 years. The cause of death was certified as being from:
“1(a) ventricular fibrulation (b) ischaemic cardiomyopathy (c) coronary artery disease 2 Carcinoma prostate”.
8. At the time of his death, the veteran had no service related disabilities. His non – service related disabilities are recorded as:
§ Lumbar spondylosis
§ Irritable bowel syndrome
§ Coronary artery disease
§ Aortic stenosis
§ Carcinoma of the prostate
§ Peptic ulcer
§ Osteoarthritis left elbow
§ Anxiety disorder
§ Death
Issue
9. The issue before the Tribunal is whether the veteran’s death was war-caused.
Legislative Framework
10. Section 8 of the Act details the circumstances in which the veterans’ death shall be taken to be “war-caused”. Section 8 states:
“8 War-caused death
(1)Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service; or
(e) the injury or disease from which the veteran died:
(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 that injury or contracted that disease; or
(f)the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;
Note:The effect of paragraph (f) is that, if the veteran has died from an injury or disease that has already been determined by the Commission to be war-caused, the death is to be taken to have been war-caused. Accordingly the Commission is not required to relate the death to eligible war service rendered by the veteran and sections 120A and 120B do not apply.
but not otherwise.
(2)Paragraph (1)(a), (b), (c) or (d) does not apply to the death of a veteran if the death:
(a) resulted from the veteran’s serious default or wilful act; or
(b) arose from:
(i)a serious breach of discipline committed by the veteran; or
(ii)an occurrence that happened while the veteran was committing a serious breach of discipline.
(3)Subsection (1) does not apply to the death of a veteran if the death of the veteran resulted from the serious default or wilful act of the veteran that happened after the veteran ceased, or last ceased, to render eligible war service.
(4) Paragraph (1)(c) does not apply:
(a)to an accident that occurred while the veteran was travelling on a journey from the veteran’s place of duty in a case where the veteran had delayed commencing the journey for a substantial time after he or she ceased to perform duty at that place (otherwise than for a reason connected with the performance of the veteran’s duties) unless, in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of that risk was not substantially increased, by that delay or by anything that happened during that delay;
(b)to an accident that occurred while the veteran was travelling on a journey, or a part of a journey, by a route that was not reasonably direct having regard to the means of transport used unless:
(i)the journey, or that part of the journey, was made by that route for a reason connected with the performance of the veteran’s duties; or
(ii)in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of that risk was not substantially increased, by reason that the journey, or that part of the journey, was made by that route; or
(c)to an accident that occurred while the veteran was travelling on a part of a journey made after a substantial interruption of the journey, being an interruption made for a reason unconnected with the performance of the veteran’s duties, unless, in the circumstances of the particular case, the nature of the risk referred to in subparagraph (b)(ii) was not substantially changed, and the extent of that risk was not substantially increased, by reason of that interruption.
(5)Paragraph (1)(e) does not apply to the death of a veteran from an injury or disease, being injury or disease that has been contributed to in a material degree by, or aggravated by, eligible war service rendered by the veteran, unless the veteran has rendered operational service or the period of the eligible war service rendered by the veteran that so contributed to the injury or disease, or by which the injury or disease was aggravated, was 6 months or longer.
(6)Despite subsection (1), the death of a veteran is taken not to have been war-caused if the veteran’s death is related to the veteran’s eligible war service only because:
(a)in the case of a veteran who had not used tobacco products before 1 January 1998—the veteran used tobacco products after 31 December 1997; or
(b) in the case of a veteran who had used tobacco products before 1 January 1998—the veteran increased his or her use of tobacco products after 31 December 1997.”
11. The applicant contends that the veteran experienced severe stressors when he was exposed to combat in Lae, Milne Bay and Bouganville, which caused him to develop panic disorder and in turn, ischaemic heart disease. In order to succeed in her claim the applicant must demonstrate that there is a reasonable hypothesis connecting the veteran’s condition with war service. Section 120 of the Act states that where such a reasonable hypothesis has been established the Tribunal must determine that it was war-caused unless it is satisfied, beyond reasonable doubt, that there is not sufficient ground for making that determination.
12. In determining the reasonableness of a hypothesis, section 120A(3) of the Act provides:
“(3)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.”
13. Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (RMA) and section 196B sets out the functions of the RMA. Section 196B(2) provides the RMA with the power to determine Statement of Principles (SoPs) in respect of injuries, disease or death, setting out the factors which must exist as a minimum before it can be said that an injury, disease or death was caused by the veteran’s war service.
14. The RMA, pursuant to section 196B of the Act determined SoPs in respect of ischaemic heart disease and panic disorder. The relevant SoPs in this matter are:
§ Ischaemic Heart Disease – Instrument No 38 of 1999
§ Panic Disorder – Instrument No 9 of 1999, as amended by instrument No 58 of 1999.
15. In relation to Instrument No 38 of1999, the applicant has indicated that she relies on factor 5(o) of the relevant SoP, which provides:
“(o)for myocardial infarction or arrhythmia with ECG evidence of myocardial ischaemia only, suffering from panic disorder or phobic anxiety with panic attack at the time of the clinical onset of ischaemic heart disease;”
16. Ischaemic heart disease is defined in clause 2(b) the SoP which states:
“For the purposes of this Statement of Principles, “ischaemic heart disease” means a cardiac disability, acute or chronic, arising from an imbalance between the supply and myocardical demand for oxygen which results from coronary atheroma or coronary vasospasm. Ischaemic heart disease may be evidenced by:
(i) myocardial infarction (old or new); or
(ii) angina; or
(iii) arrhythmia with ECG evidence of myocardial ischaemia; or
(iv) cardiac failure,
attracting ICD-9-CM code 410, 411, 412, 413, 414.0, 414.10 or 414.8”.
17. With regard to panic disorder the applicant contends that the veteran satisfied factor 5(a) of Instrument No 9 of 1999, which states:
“(a)experiencing a severe stressor within the two years immediately before the clinical onset of panic disorder; or”
18. The characteristics required to be present for a diagnosis of panic disorder to be made are set out in clause 2(b) of instrument No 9 of 1999. It provides:
“2(b) For the purpose of this statement of principles, “panic disorder” means a psychiatric condition characterised by the following diagnostic criteria:
(A) the person has experienced both:
(1) recurrent unexpected panic attacks; and
(2) (i) has experienced at least four panic attacks in four weeks; or
(ii) in the case of fewer panic attacks, at least one of the panic attacks has been followed by 30 days (or more) of one (or more) of the following:
(a) persistent concern about having additional panic attacks; or
(b) worry about the implications of the panic attack or its consequences; or
(c) a significant change in behaviour related to the panic attacks; where
(B) the panic attacks can occur in the presence or absence of agoraphobia; and
(C) the panic attacks are not die to the direct physiological effects of a substance or a general medical condition; and
(D) the panic attacks are not better accounted for by another mental disorder, such as social phobia, specific phobia, obsessive-compulsive disorder, post traumatic stress disorder, or separation anxiety disorder,
attracting ICD-9-CM code 300.02 pr 300.21”.
19. Instrument No 9 of 1999 further defines a “panic attack”. It states:
““panic attack” means a condition, as defined in DSM-IV, meeting the following criteria:
the person has experienced a discrete period of intense fear or discomfort, in which four (or more) of the following symptoms developed abruptly and reached a peak within 10 minutes:
(1) palpitations, pounding heart, or accelerated heart beat; or
(2) sweating; or
(3) trembling or shaking; or
(4) sensations of shortness of breath or smothering; or
(5) feeling of choking; or
(6) chest pain or discomfort; or
(7) nausea or abdominal distress; or
(8) feeling dizzy, unsteady, light headed or faint; or
(9) derealisation (feeling of unreality) or depersonalisation (being detached from oneself); or
(10) fear or losing control or going crazy; or
(11) fear of dying; or
(12) paresthesias (numbness or tingling sensations); or
(13) chills or hot flushes”.
Evidence of the Applicant
20. The applicant confirmed her statement, dated 12 June 2000 (Exhibit 2), which stated:
“1.I am making this statement in relation to my claim now before the Administrative Appeals Tribunal that the death of my late husband Colin Harris was war caused.
2.I believe I met my husband in 1939, it was certainly before he joined the Army. I remember that he organised my 21st birthday party in 1941. We were engaged in 1942 and married in 1944.
3.Before the war I remember my husband was just an ordinary fellow. I remember he was particularly interested in cricket.
4.When he came back from the war, although it was not immediately evident, he became a very anxious and worried person. I remember on one particular occasion when my daughter went overseas he became extremely worried. He got himself in such a state at this point that he came down with the Shingles. I remember him getting really up tight and tense about this.
5.On other occasions when his father died in 1957 he became shockingly upset about this and again when I had a cancer operation in 1975 he got extremely up tight and upset.
6.I particularly remember my husband became extremely up tight during storms. At one point in 1985 we had a storm which smashed the front windows of our house and we had to take my husband to hospital to get glass out of him.
7.My husband would always worry about storms. He was always terrified that something might happen to the house and was always on edge whenever a storm looked close. My husband suffered from bowel problems throughout much of his life and I believe that this could have been related to his constant nerves.
8.At one point my husband went to see Dr Chalk, a Psychiatrist. Although Dr Chalk indicated in his report that a rapport was readily established, I remember that when my husband walked out of the interview with Dr Chalk he was unimpressed. When he came out he mentioned that Dr Chalk didn’t seem to ask him any questions which were relevant.
9.Since the war my husband has been a constantly worried and uptight person and this worry and anxiety would be exaggerated during specific times such as those mentioned above.”
21. In cross-examination the applicant was question about the report prepared by Dr J Carter. She stated that she had only opened up to Dr Carter after approximately four visits. She confirmed the content of the report of Dr Carter, specifically paragraph 1 of page 3 and paragraph 13 of page 4 set out under the heading “Discussion of the symptoms of panic attack”. These paragraphs provide:
“(1) Alice had no knowledge of her husband having palpitations and a pounding heart, although she couldn’t rule out, but wasn’t able to rule it in. I noted her throughout the interview to be very obsessional, and she wasn’t prepared to state that her husband had anything that she wasn’t sure that he did have.
…
(13) Associated with all the above symptoms, she said that he had chills and hot flushes at times”.
22. She further stated that the veteran had suffered chest pains for an extended period of time. She said that he had had a barium meal in 1960 and found digesting food difficult.
23. She said that the veteran worried about daily events of life going on around him. She said he experienced shortness of breath, which began during 1970. She stated that the veteran trembled and perspired when he was worried.
Evidence of Robyn Harris
24. Ms Robyn Harris said she was 51 years of age. She stated that she had memories of her father from about aged 10 or 11 years and from about 15 years of age could remember her father’s symptoms.
25. She said that she had been interviewed by Dr Carter, in the course of preparing her report, dated 23 July 2002. Further, she confirmed the contents of Exhibit 5, the letter she had written to Gilshenan and Luton Lawyers in which she stated that she agreed with paragraphs 2, 3, 4, 6, 7, 8, 10, 11, 12, 13 and 2(b)(A)(2) of the report of Dr Carter.
Evidence of Judith Harris
26. Ms Judith Harris stated she was 53 years of age and a teacher. She said that she left her parent’s home at aged 20 years to teach at Kalbar outside Ipswich. She stated that she had also been resident in Sydney but returned home approximately once every three months.
27. She said she particularly recalled an incident in 1974 when the family was driving to Sydney when her father became visibly upset. She said he was in tears and quite distressed.
28. She stated she had also been interviewed by Dr Carter in the preparation of her report. She confirmed the contents of Exhibit 4, a letter she had written to Gilshenan and Luton Lawyers, in which she says she agreed with paragraphs 2, 3, 4, 6, 7, 8, 10, 13 and 2(b)(A)(2) both (a) and (b).
Evidence of Valerie Farmer
29. Ms Valerie Farmer stated that she was a semi-retired counsellor, having previously worked as a counsellor for 20 years. She said that she was a friend of the family and would visit the Harris family between once a week and once a fortnight, over a number of years.
30. She said that the veteran always came across to her as being quite agitated, as evidenced by his body language. She stated that he used to wring his hands a lot.
31. She confirmed the contents of Exhibit 11, a letter written by her to Gilshenan and Luton in which she stated she agreed with the statements outlined by Dr Carter in her report. She stated that the paragraphs 2, 3, 4, 6, 7, 8, 10, 13 and 2(b)(A)(2) both (a) and (b) reflect her knowledge of the veteran.
Evidence of Dr Carter, Psychiatrist
32. Dr Carter stated she saw Mrs Harris on four occasions. She said that it was her approach to interview a patient on a number of occasions to allow the person to go away and consider the issues that they had discussed in the interview before returning to talk to her with a clearer mind. She noted her comments at page 5 of her report where she stated:
“I found Alice to be quite a vague historian, and obtaining information from her really was like performing the duties of a psychological dentist.”
33. Dr Carter stated that it was only later that she found out that Mrs Harris was being very careful. Dr Carter confirmed the matters raised in her report on pages 3 and 4 and noted that she formed the impression that these symptoms occurred concurrently.
34. In considering Dr Mulholland’s diagnosis of generalised anxiety disorder, Dr Carter said it was not impossible for there to be two different diagnoses and referred to Dr Chalk’s assessment on this point. In cross-examination Dr Carter noted the organic diseases including cardiac disease and gastro problems.
35. Dr Carter recorded when the veteran returned from duty the symptoms of panic attack were noticeable, including chest pain and sweating and was of the view that the symptoms complained of were related to war service. She further noted that the veteran was a chronic worrier.
Evidence of Dr Love, Physician
36. Dr Love has been a practising physician for 29 years. He confirmed the matters set out in his reports, dated 16 September 2000 and 21 October 2001, marked as Exhibits 6 and 7, respectively.
37. In particular, Dr Love confirmed the statement in his report on page 1 of Exhibit 6, which says:
“You asked firstly whether the late veteran’s death can be attributed to ‘myocardial infarction or arrhythmia with E.C.G. evidence of myocardial ischaemia’. It is absolutely certain that an arrhythmia occurred and that as a result of that arrhythmia, there would have been myocardial ischaemia which could have been demonstrated on an E.C.G. had a recording been performed at that time. There is also a very strong presumption that the E.C.G. strip would have shown changes of myocardial ischaemia in the period leading up to the arrhythmia as myocardial ischaemia is the pre-eminent cause of cardiac arrhythmias.”
38. He further confirmed the contents of page 4 of the same report, where he notes:
“I hope that I have been able to convey that Mr Harris’ death, despite the coincidental occurrence of aortic valvular disease, was solely due to ischaemic heart disease and this fact is well documented in the reports provided.”
39. Dr Love described myocardial infarction as a lack of oxygen which causes death of the heart muscle. He said that when the heart beats faster it requires more oxygen. He stated that he was of the view that factor 5(o) of the relevant SoP was met.
Evidence of Dr Mulholland
40. Dr Mulholland in his evidence confirmed his report dated 30 November 2000 (Exhibit 8). He stated that he thought that the information received from Mrs Harris was reasonably satisfactory. He acknowledged the problems of making posthumous assessments and said that in arriving at his assessment he had taken into account the matters referred to by Dr Chalk. Dr Mulholland said that he was tentative about his finding of generalised anxiety disorder for the reasons stated in his report. He was critical of Dr Carter’s assessment.
Discussion and Decision
41. In considering this application, the Tribunal has had regard to the steps to be followed in cases such as this, as set out in the decision of Repatriation Commission v Deledio (1998) 83 FCR 82 where the Full Court (Beaumont, Hill and O’Connor JJ) said at 97-98:
“…we would restate the course which the Tribunal is to take, such as the present, (that is, one involving a claim to be decided after the 1994 Amendments) 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 that person as follows:
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 s196B(2) or (11) [of the 1986 Act]. 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 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 s196B(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 s120(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.”
42. The Tribunal must consider, to its reasonable satisfaction, the characterisation of the cause of the veteran’s death and the medical conditions which the applicant claims he suffered.
43. There is no dispute that the veteran suffered from ischaemic heart disease and having considered the medical evidence before it, the Tribunal so finds. There is also no dispute between the parties that the veteran’s death was the result of ventricular fibrillation, ischaemic cardiomyopathy, coronary artery disease and carcinoma prostate and the Tribunal so finds.
44. Factor 5(0) of Instrument No 38 of 1999 requires the veteran’s death to be in circumstances of myocardial infarction or arrhythmia with ECG evidence of myocardial ischaemia only. Although no ECG was performed, the applicant has sought to rely on the evidence of Dr Love in his report dated 16 September 2000 (Exhibit 6), extracted at paragraphs 37 and 38 above.
45. Dr Grant in his report, dated 22 June 2000, states that since no ECG was performed at the time of death, it was not possible to determine if the ventricular fibrillation described as the terminal event was associated with ischaemic changes. He stated that ventricular fibrillation is a common terminal event irrespective of whether or not a person suffers from ischaemic heart disease and the most that could be said was that myocardial ischaemia appears to have been a major factor in the veteran’s death.
46. Having considered the opinions of Dr Grant and Dr Loves in conjunction with the medical history of the veteran, the Tribunal prefers the opinion of Dr Love and is of the view an arrhythmia did occur and that myocardial ischaemia would have been demonstrated on an ECG.
47. The next issue for consideration is whether the veteran was suffering from panic disorder. The Tribunal has had regard to the reports of Dr Chalk dated 22 February 1994, Dr Mulholland dated 30 November 2000 and Dr Carter dated 23 July 2002 as well as the evidence of the applicant, her daughters and Ms Farmer.
48. Dr Chalk diagnosed the veteran as suffering from generalised anxiety disorder. In his report, dated 22 February 1994 (T4, page 24-25), Dr Chalk, summarises the symptomatology given by the veteran. He states:
“He describes a number of symptoms that he attributes to stress from the war. He describes himself as having been a habitual worrier since his service, especially at work. He describes himself as feeling strange at times and describes himself as also being cranky, particularly in recent years. This appears to be associated with his increasing disabilities with age and he told me that it was “no fun getting old”.. Mr. Harris describes becoming depressed at times, but does not appear to have been treated for a clinical depressive illness. He also complains of occasional dreams though these appear to relate, particularly to an incident in April 1993 when he wrote his car off and damaged six others.
He describes some mild sleep disturbance but no problems with his appetite. He describes his concentration as being slightly impaired due to age and that his memory is a perpetual problem to him. He feels that his energy levels have decreased recently though he still enjoys life and has no feelings of being better off dead. There was no past psychiatric history and no history of deliberate self harm”.
49. Dr Mulholland in his report (Exhibit 8) opined that the veteran was probably suffering from generalised anxiety disorder rather than panic disorder. With regard to the history given by the applicant Dr Mulholland at paragraph 5.2 states:
“….She indicated that it was obviously to her that from shortly after he returned home for the second time (4 December 1945) that he was “terribly worried about everything…worried about things…” Mrs. Harris had difficulty being specific about what he was worried about however what she described was a person who might be customarily described as being a “worrier” and who tended to be excessively anxious about ordinary everyday activities of life and then to react with greater degrees of anxiety to troublesome events, e.g. their daughter going overseas to be a missionary, then developing shingles and the hail storm of 1985….”
50. At paragraph 5.3 of his report he states:
“I carefully took Mrs Harris through any matters that might indicate his having had panic attacks (i.e. panic disorder) or for him to have any phobic disorders and I was unable to obtain any history as would be consistent with panic disorder or phobic disorder nor could I obtain any history that might be consistent with post traumatic stress disorder.”
51. Further, Dr Mulholland under the heading “Opinion” states:
“12.1From what I can make of the situation Mr Harris probably had a generalised anxiety disorder for many years. The difficulty with this diagnosis is that to make the diagnosis a psychiatrist needs to be able to say that the condition caused clinically significant distress to the patient and/or caused clinically significant impairment in social, occupational or other important areas of functioning.
12.2The history from Mrs Harris is consistent with her husband what would probably be some clinical levels of distress for many years and there is no history of impairment of marriage, social or occupational functioning. The level of his personal distress increased over the years such that Dr Pritchard referred to it in 1944 and psychiatrist Dr John Chalk made a diagnosis of GAD in 1994 however by that time his anxiety state would have been aggravated by his reacting to his serious cardiac condition and also a 1993 MVA was contributing…..
…..
12.5You will appreciate that it is difficult to make posthumous diagnoses and especially so as in this case there are only minimal contemporaneous references to the veteran having any sort of psychiatric condition. I note that on page 19 under the heading of 22 February 1991 the comment is made ‘stress – many years’ and it is a pity that that comment was not expanded upon. However it is consistent with my understanding that by that time he did have a clinically diagnosable generalised anxiety disorder.
12.6Cardiologist Dr David Pritchard in his letter of 14 September 1994 relates his shortness of breath to ‘loss of confidence’ and refers to ‘a large psychogenic element’. Dr Pritchard’s comments are consistent with his having a GAD by that time as is consistent with Dr John Chalk’s report dated 22 February 1994.
12.7I have gone through the Statement of Principles concerning ischaemic heart disease and I note that although there is a reference to psychiatric condition such as panic disorder-phobic anxiety-panic attack and there are references to ‘experiencing a severe stressor immediately before the clinical onset of ischaemic heart disease’ there is not any reference to generalised anxiety disorder.”
52. Dr Carter in her report expresses the opinion that the veteran suffered from panic disorder. At page 5 of her report (Exhibit 3), she states:
“2.The incidents described by the late veteran’s widow are consistent with a diagnosis of panic disorder with panic attacks.
3.The veteran suffered from panic attacks as defined in the Statement of Principles.
4.It seems as though the veteran suffered from a severe stressor prior to the onset of his panic disorder.
5.The veteran did seem to suffer from symptoms of anxiety, and at times he may have had the symptoms also of generalised anxiety, but from the history I was able to obtain, the symptoms did reach a climax very often, and would more correctly be diagnosed as panic disorder.
As far as I can see, the previous psychiatrist did not go into a lot of detail following up each of those symptoms with any degree of diagnostic endeavour. That would be hard with Alice Harris in one interview, because she does find it hard to organise and analyse her thoughts, and at this stage she can be a little forgetful. However, she has the other characteristic of being very obsessional, and she won’t say that her husband suffered from anything that she doesn’t believe that he did, and she probably errs on the side of being over-cautious in describing a symptom. She is certainly not a ‘sophisticated’ interviewee”.
53. At pages 3 and 4 of her report, Dr Carter analyses the criteria, set out in SoP Instrument No 38 of 1999, which must be present to constitute a panic attack. Mrs Harris was able to give a history of the veteran suffering from 7 of the 13 matters listed, these being:
(2) sweating
(3) trembling or shaking
(4) sensations of shortness of breath or smothering
(5) feeling of choking
(6) chest pain or discomfort
(7) nausea or abdominal distress
(8) feeling dizzy, unsteady, light headed or faint
(13) chills or hot flushes.
54. There are obvious difficulties in making a posthumous diagnosis of a psychiatric condition. In this case the Tribunal prefers the opinion of Dr Chalk, supported by Dr Mulholland, that the veteran was suffering from generalised anxiety disorder. It is preferred on the basis that Dr Chalk was the only psychiatrist who was able to make a diagnostic assessment of the veteran while he was still alive.
55. Whilst Dr Carter has identified the veteran as demonstrating symptoms consistent with a panic attack, she has not identified specific episodes of panic attack, such that it could be said the veteran experienced a discrete period of intense fear or discomfort, where four or more of the symptoms were present, that developed and reached a peak within 10 minutes.
56. The Tribunal found the evidence of the applicant, her daughters and Ms Farmer to be of limited assistance in determining if the veteran suffered from panic attacks. Whilst they could all identify the veteran as demonstrating symptoms that were consistent with a panic attack, they could not identify specific episodes in which it could be said that an attack had occurred or that the veteran had experienced recurrent unexpected attacks.
57. Therefore, factor 5(o) of Instrument No 38 of 1999 is not satisfied. A reasonable hypothesis has not been raised connecting the veteran’s death from Ischaemic heart disease with his war service. Accordingly, the Tribunal affirms the decision under review.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Kirsten Donnelly
AssociateDate/s of Hearing 24 April 2003
Date of Decision 2 March 2004Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr M Smith, Departmental Advocate
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