Hassett and Repatriation Commission
[2007] AATA 1608
•31 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1608
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N 2005/1395
VETERANS' APPEALS DIVISION ) Re STUART JOHN HASSETT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr J Campbell, Member
Date31 July 2007
PlaceSydney
Decision The decision under review is affirmed.
.................[sgd]......................
M D Allen Presiding Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – application for review of decision rejecting conditions of adjustment disorder and impotence as diseases attributable to defence service – civil standard of proof – decision under review affirmed
LEGISLATION
Veterans' Entitlements Act 1986 sections 120, 120A, 120B, 196B and Part IV
Diagnostic and Statistical Manual of Mental Disorders, 4th ed (DSM-IV) Washington, DC: American Psychiatric Association, 2000.
Statement of Principles Statutory Instruments No.1 of 2000, No.2 of 2000, No.17 of 2005 and No.18 of 2005.
CASE LAW
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Milenz [2006] FCA 1436
Repatriation Commission v Warren [2007] FCA 866
REASONS FOR DECISION
31 July 2007 Senior Member M D Allen Dr J Campbell, Member 1. By application made the 31st day of October 2005 the Applicant sought review of a decision by the Respondent rejecting his claims to have the conditions of adjustment disorder and impotence attributed to his eligible service.
2. The Applicant served in the Royal Australian Air Force from 10 January 1968 when he entered the RAAF Apprentice School at Wagga Wagga aged 16 until 30 September 1989 when he was discharged with the rank of Flight Sergeant.
3. During his RAAF Service the Applicant had one period of Peacekeeping Service as defined in Part IV of the Veterans’ Entitlements Act 1986 from 15 September 1977 to 23 March 1978 as a member of the United Nations India-Pakistan Observation Mission and Defence Service as that term is defined in Part IV of the VEA from 7 December 1972 to 14 September 1977 and from 24 March 1978 to date of discharge.
4. So far as the Applicant’s period of Peacekeeping Service is concerned the standard of proof is that mandated by subsections 120(2) and (3) VEA.
5. Subsections 120(2) and (3) VEA provide that any disease suffered by a veteran and claimed to be caused by Peacekeeping Service shall be accepted as so caused unless the Tribunal is satisfied beyond reasonable doubt. There is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, part of consideration of the whole of the material before it, the Tribunal is of the opinion that the set material does not raise a reasonable hypothesis connecting the disease suffered by the Applicant with the circumstances of the service rendered by him. Pursuant to section 120A VEA a hypothesis will not be “reasonable hypothesis” unless it conforms to a so called Statement of Principles issued by the Repatriation Medical Authority.
6. The standard of proof applicable to incapacities said to have arisen during the Applicant’s period of Defence Service is to the Tribunal “reasonable satisfaction” ss120(4) VEA. In Repatriation Commission v Smith (1987) 15 FCR 327 the Full Court of the Federal Court equated that standard to the civil standard of proof, namely that of proof on the balance or probabilities.
7. Section 120B VEA mandates that the Tribunal can be reasonably satisfied that an injury death or disease is attributable to Defence Service only if a SoP determined under s196B VEA upholds the contention of connection with service.
8. Subsection 196B(14) provides that a factor causing or contributing to an injury disease or death is related to service if:
(d) it was contributed to in a material degree by, or was aggravated by, that service.
9. Subsection 120(6) VEA provides that:
“neither party to this review bears any onus of proof”.
10. The Respondent concedes that the Applicant suffers from impotence. This being so to attribute this condition to his service the Applicant must conform to either Instruments No.17 of 2005 (“reasonable hypothesis”) or No.18 of 2005 (“balance of probabilities”).
11. Although the Applicant’s original claim referred to an Adjustment Disorder which condition was diagnosed by psychiatrist Dr Koller, other psychiatrists namely Drs Bhandari, Lewin and Altman have all diagnosed symptoms of Generalised Anxiety Disorder.
12. Dr Graham Altman in his report of 14 June 2006 opined that the Applicant suffered from a Post Traumatic Stress Disorder but added that if the stressors do not meet the SoP for PTSD then the Applicant had at the least a Generalised Anxiety Disorder with associated major depression and Alcohol Dependence.
13. Dr Robinson, Psychiatrist, examined the Applicant on behalf of the Respondent in 2003 on two occasions with respect to a claim for “Alcohol Abuse”. In Dr Robinson’s opinion the Applicant did not suffer from either Alcohol Abuse or Alcohol Dependence.
14. Dr Koller in a report dated 19 February 2004 stated:
“The diagnosis is an Adjustment Disorder with Anxiety and Depression. Also Alcohol Dependence is recognised.”
Unfortunately as Dr Koller was not called to give evidence, we are not sure what he meant by Alcohol Dependence being “recognised”. He does refer in his report to the Applicant drinking excessive alcohol each day, a habit that commenced in the RAAF. Dr Koller does not however attempt to relate the Applicant’s alcohol consumption with the diagnostic criteria in the Diagnostic and Statistics Manual Volume IV for Substance Dependence or Substance Abuse.
15. Although not a psychiatrist Occupational Physician Dr Tim Anderson in a report dated 12 August 2004 noted that the Applicant presented as “very down and at a loss at what he might do”. He opined that if the Applicant were to modify his lifestyle and undertake an exercise programme, he would have a happier and more fulfilling life. Significantly in Dr Anderson’s report although suggesting that the Applicant’s alcohol intake might be contributing to his frequent bowel activity he took no history of and made no finding of any Alcohol Abuse or Dependence.
16. A comprehensive report dated 25 November 2004 was made to the Respondent by psychiatrist Dr Bhandari. Dr Bhandari had examined the Applicant on three occasions. In coming to his opinion Dr Bhandari had the benefit of seeing the reports of Drs Robinson and Koller.
17. In the opinion of Dr Bhandari the Applicant suffered from alcohol abuse. He did however go on to say:
“The presence of Personality Disorder also requires consideration and whether Mr Hassett has used alcohol extensively over the years to self medicate the long standing and pre-existing avoidance personality traits… He may have an underlying Anxiety Disorder, and reports a long history of social anxiety symptoms since childhood.”
18. Dr Bhandari also stated that there was no evidence to suggest the Applicant suffered a PTSD. Contrary to Dr Koller’s opinion, Dr Bhandari rejected a diagnosis of Anxiety Disorder secondary to Lumbar Spondylosis.
19. The history obtained by Dr Bhandari from the Applicant was that he was shy as a child and suffered a number of social anxiety symptoms. His childhood was a difficult one characterised by limited financial resources although he had a close relationship with his father.
20. The Applicant’s evidence to the Tribunal was that as a teenager he suffered badly from disfiguring acne and as a result became shy and withdrawn. He stated that it had made him tense in interpersonal relationships and that the tension and anxiety had stayed with him during his earlier years in the RAAF. Dr Lewin, Psychiatrist, also took a history that to him suggested the Applicant was an anxiety sufferer in his teenage years. In his report 6 December 2006 Dr Lewin stated:
“Mr Hassett reported a pattern of mild anxiety symptoms in his teenage years. That pattern of symptoms is consistent with the illness which evolved in subsequent years. This pattern of changing and episodic anxiety symptoms is typical of Generalised Anxiety Disorder. This is usually a lifelong illness and the condition is considered to have primarily a genetic origin.”
He added:
“You asked when the clinical onset of Mr Hassett’s Anxiety Disorder occurred. I have insufficient information to make a judgment upon this question. He described himself as a person who had always been anxious, tense and intermittently irritable. Based upon the history reported to me, it is unclear when Mr Hassett’s psychiatric condition evolved to the degree that a psychiatric condition was present. Some symptoms appear to have been present, even from his teenage years.”
21. The only psychiatrists who refer in their reports to the Applicant having symptoms of an anxiety state in his early years are Drs Bhandari and Lewin. We note however that shortly after taking up his first posting in the RAAF, after leaving the apprentice school at Wagga, the Applicant was referred for psychological assessment due it would seem to dissatisfaction with service life and anxiety especially at meal times. The psychologist noted that the Applicant was drinking, as intoxication gave relief from inner stress.
22. Given the history recorded above together with the Applicant’s own evidence to this Tribunal we are convinced that Dr Lewin’s diagnosis of a Generalised Anxiety Disorder having its genesis in his teenage years is correct.
23. We specifically reject any diagnosis of alcohol abuse or alcohol dependence. The Applicant has a long history of drinking alcohol to excess. However he has managed a successful career in the RAAF and apart from one motor vehicle accident and an associated charge of driving under the influence, there is no evidence of any other legal proceedings arising from his drinking. In particular the Applicant has held positions of responsibility in his trade as an Airframe Fitter and was promoted to senior non-commissioned officer rank. There is no evidence of any disciplinary proceedings against him or administrative warnings for failure to carry out his duties. In other words, there is no evidence that alcohol has impeded his ability to perform his duties, nor is there evidence of failure to perform in social or sporting activities. The Applicant is simply a person who has a habit of drinking alcohol in large amounts. Overseas he drank more because of the particular circumstances but on return to Australia he reverted to his former rate of consumption. All of these circumstances mitigate against any diagnosis of Alcohol Abuse or Dependence.
24. On the material before us, and as was submitted by the Applicant’s solicitor in his closing submissions, any hypothesis raised, is that the Applicant’s pre-existing general Anxiety Disorder was aggravated by events occurring during his service in the RAAF.
25. In particular there are four events which can be pointed to as raising a hypothesis that his general Anxiety Disorder suffered an aggravation.
26. The first such incident is during the Applicant’s service in Kashmir. The Applicant was a crew member of an RAAF Caribou aircraft which previously had been snowed in at Srinagar, but the pilots insisted on flying the aircraft back to its base in Rawalpindi. The Applicant as flight engineer considered the flight unsafe and the aircraft was forced to cross mountains by flying at a higher than normal altitude using oxygen as there was no visibility. The Applicant thought that he would not survive the flight. After his return to Australia he began to get nightmares regarding this flight and those nightmares have continued.
27. Whilst stationed in Srinagar he was in a vehicle which was attacked during a religious riot. The rioters began to rock the vehicle and he feared for his personal safety.
28. Both of the above incidents happened whilst the Applicant was on Peacekeeping Service consequently the SoP applicable is Instrument No.1 of 2000. That Instrument reads inter alia that a factor connecting on Anxiety Disorder with operational services is:
“5(v) experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of Anxiety Disorder.”
29. The term “clinical worsening” was explained by Finn J in Repatriation Commission v Milenz [2006] FCA 1436 to require a clinical judgement as to whether there had been a worsening of the features and symptoms of the disorder as defined. We note that Finn J refers to the disorder as defined in the SoP, but following the decision of Keifel J in Repatriation Commission v Warren [2007] FCA 866; the reference must be to the disorder as either defined in the SoP or the appropriate diagnostic text. For example for Psychiatric Disorders the Diagnostic and Statistical Manual.
30. Similar comments can be made regarding the two psychosocial stressors experienced by the Applicant whilst on Defence Service. The first of those stressors was when two Mirage aircraft collided over the High Range training area near Townsville.
31. One of the pilots killed in that mid-air collision was a person well-known to the Applicant and with whom he had had close professional dealings. In addition debris collected by air crash investigators was laid out in a hanger in which the Applicant had been working. That debris also included bits of flying helmets and uniform items belonging to the deceased pilots. Contrary to what was alleged in the Applicant’s Statement of Facts and Contentions, the Applicant did not have to recover body parts following the crash.
32. A further alleged psychosocial stressor was the death in an aircraft crash following pilot error of a young serviceman, whom the Applicant had encouraged to apply for air crew. He in some way felt responsible for the death of this young man as he had encouraged him to apply for air crew.
33. Statutory Instrument No.2 of 2000 is the SoP applicable to Anxiety Disorder arising out of Defence Service. Factor 5(a)(iv) of that instrument states that for the Tribunal to be satisfied on the balance of probabilities that an Anxiety Disorder has been aggravated by circumstances occurring during Defence Service, the Applicant must have experienced a severe psychosocial stressor within one year of the clinical worsening of the Anxiety Disorder.
34. Assuming, for the purposes of raising a hypothesis (Peacekeeping Service) or for evidencing an aggravation (Defence Service) that the events referred to by the Applicant constituted a severe psychosocial stressor, there is still no evidence before us of the clinical worsening of his Anxiety Disorder within two years (Instrument No.1 of 2000) or one year (Instrument No.2 of 2000) of the Applicant experiencing the stressor.
35. The Applicant did give evidence of sleep disturbance after returning home from Peacekeeping Service in Kashmir. Other dreams apparently started months after the events. Question as to when he started getting the dreams the Applicant stated that they had been there all the time after he got out of the RAAF.
36. The Applicant was discharged from the RAAF in 1989. Questioned by the Tribunal he said that the dreams had become worse after his discharge, but added “things went downhill from 2003 onwards”. We note that the Applicant had ceased employment in or about 2001.
37. Dr Kollar, who the Applicant consulted in 2004, diagnosed an Adjustment Disorder with Anxiety and Depression due to the Applicant’s orthopaedic conditions, but does not give a date of clinical onset of the condition.
38. Dr Bhandari also noted significant pain secondary to Lumbar Spondylosis and Osteoarthoatis. This is perhaps corroborative of the Applicant stating his condition deteriorated after 2003.
39. Dr Lewin diagnosed an aggravation of a Generalised Anxiety Disorder but was unable to specify a date of clinical onset. He did state however that the Applicant had been aware of the symptoms for 15 years. That is he had been aware since 1991. The incidents suggested by the Applicant to have been severe psychosocial stressors occurred in 1978, 1984 and according to his evidence the “early 90s”. Dr Lewin went on to state however that there are a number of suggestions that the Applicant was an anxiety sufferer during his teenage years, and he had already noted that his service medical record shows intervention by a psychologist in 1971.
40. As there is no evidence to even point to when the clinical signs and symptoms of the Applicant’s Anxiety Disorder became worse than they otherwise would have been i.e. that he suffered an aggravation, we cannot say that there exists a reasonable hypothesis connecting the Generalised Anxiety Disorder now suffered by the Applicant with his Peacekeeping Service and for the same reasons we cannot be satisfied on the balance of probabilities that his Generalised Anxiety Disorder is connected with his defence service.
41. As the Applicant’s impotence is a result of his psychiatric illness then as Generalised Anxiety Disorder can not be related to service, neither can impotence.
42. The decision under review is therefore affirmed.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr J Campbell
Signed: [sgd].....Mwela Kapapa..........................................
AssociateDate of Hearing 3 July 2007
Date of Decision 31 July 2007
Counsel for the Applicant Mr B WinshipSolicitor for the Respondent Department of Veterans Affairs, Melbourne
Counsel for the Respondent Mr G Purcell
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