Heath and Military Rehabilitation and Compensation Commission (Compensation)

[2017] AATA 735

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )

)         No: 2016/1925

Veterans' Appeals Division  )

Re: Gary Heath
Applicant

And: Military Rehabilitation and Compensation Commission
Respondent

DIRECTION

TRIBUNAL:              Mrs J C Kelly, Senior Member

DATE:   18 July 2017

PLACE:                    Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application dated 26 May 2017 as follows:

1. the first sentence in paragraph 30 shall now read: “During a course at Puckapunyal as part of an assessment for promotion, Mr Heath took measures he thought were necessary to overcome the disadvantage of his colour blindness.”

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Mrs J C Kelly, Senior Member

Heath and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 735 (26 May 2017)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2016/1925

Re:Gary Heath

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

Decision

Tribunal:Senior Member J Kelly

Date:26 May 2017

Place:Sydney

The Tribunal affirms the reviewable decision made on 5 April 2016 that affirmed the decision made on 21 October 2015 to deny liability for “Obsessive Compulsive Disorder”.

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Senior Member J Kelly

Catchwords

VETERANS’ AFFAIRS – claim for compensation – obsessive compulsive disorder – applicant suffers from obsessive compulsive disorder - obsessive compulsive disorder not caused by military service – decision under review affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B

Military Rehabilitation and Compensation Act 2004 (Cth)

REASONS FOR DECISION

Senior Member J Kelly

26 May 2017

The reviewable decision

1. The applicant, Mr Heath, seeks compensation in respect of “Obsessive Compulsive Disorder” condition (OCD).  The reviewable decision made on 5 April 2016 affirmed the decision made on 21 October 2015 to deny liability for that condition.

The law

1. The applicant’s claim was made and determined under the Safety, Rehabilitation and Compensation Act1988 (Cth) (SRCA) which provides compensation coverage for all members and ex-serving members of the Australian Defence Force from 3 January 1949 until and including 30 June 2004. The Military Rehabilitation and Compensation Act 2004(Cth) (MRCA) came into effect on 1 July 2004.

2. Counsel for the respondent emphasised that the test under s 5B(1) of the SRCA is that military service has contributed to a significant  degree to the causation or aggravation of Mr Heath’s OCD condition, rather than the previous test which required that the military service contributed in a material degree to the condition.  He also submitted that even if the Tribunal were satisfied that the condition was caused by service, Mr Heath was not covered under the SRCA and would need to claim under the MRCA because his OCD condition was not diagnosed until 2010.  Given the Tribunal’s findings in this matter, it is unnecessary to address this question.

Background

1. Mr Heath was born in 1937.  He undertook a period of National Service commencing in 1956.  He served in the regular Army for 14 years from 1957 to 1971 and in the Army Reserve for five years from October 1977 to April 1982. He attained the rank of Major while in the regular Army. 

2. In a determination dated 25 August 2008, the respondent accepted liability for malignant melanoma on the basis that Mr Heath’s military service had contributed in a material degree to that condition.

3. On 26 April 2010, Mr Heath requested that liability be accepted for “increased Anxiety state, OCD and … hypertension” resulting from the diagnosis and excision of the accepted melanoma conditions.

4. A determination dated 18 June 2010 disallowed that claim. However, on 13 October 2011 the determination dated 18 June 2010 was varied to extend liability to include “generalised anxiety disorder” (GAD) because the delegate was satisfied that Mr Heath’s compensable conditions of melanoma of the back and skin cancer of the left eye contributed to the aggravation of his GAD. Mr Heath received compensation for medical treatment associated with his accepted GAD condition, including medication and psychiatric therapy.

5. Mr Heath claimed compensation for permanent impairment suffered as a result of his accepted GAD condition, for which he was determined to have suffered 10% whole person impairment under Table 5.1 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment.

6. In a letter dated 3 February 2015, Mr Heath claimed that he suffered GAD, OCD and significant stress as a result of injurious treatment during his Army service from 1957 to 1971 and requested that liability be accepted under the SRCA. The applicant alleged that the conditions were suffered as a result of his treatment by superiors in relation to his colour blindness.   He claimed that he had been required to perform full unrestricted duties and carry out all responsibilities without being assisted or having appropriate restrictions and limitations enforced.  He provided details of his treatment and supporting documentation.

7. On 28 May 2015, Mr Heath made a further claim for rehabilitation and compensation for GAD, anxiety disorder, OCD and significant stress of which he first became aware in 1971.

8. By the time he made his further claim, Mr Heath had sought a reparation payment under the Defence Abuse Reparation Scheme.  On 23 July 2014, the Defence Abuse Response Taskforce (DART) considered the applicant’s personal account of abuse in Defence and made a final assessment that he qualified for a reparation payment. In making that assessment, DART applied the test of plausibility and was satisfied that the applicant suffered abuse during his time in the National Service and the Army and that the abuse included bullying and harassment. DART also applied the test of plausibility as to whether there was mismanagement by Defence in relation to the abuse and was satisfied that Mr Heath qualified for a payment of $20,000.

9. In a determination dated 21 October 2015, Mr Heath’s claim for GAD, OCD and significant stress was disallowed. The delegate noted that liability had been accepted for Mr Heath’s anxiety disorder as a consequence of his accepted “basal cell carcinoma left eyelid, and proptosis, symblepharon and scleral show of the left eye” and therefore could not be accepted again. The delegate was not satisfied that the applicant’s military service had made a significant contribution to the causation of the applicant’s OCD.

10. The applicant requested a reconsideration of the determination by letter dated 18 November 2015.

11. The MRCC decided on 5 April 2016 to affirm the determination dated 21 October 2015. On review in this Tribunal, the respondent provided two volumes of documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T documents).

Mr Heath’s relevant personal, work and medical history

1. The following is a summary of Mr Heath’s personal, work and medical history which is relevant and uncontroversial.  He married in 1959. The marriage dissolved in 1986. He is estranged from three of his four children of that marriage. He remarried in 1991.

2. Mr Heath had 12 full-time jobs from 1971 until 1996 when he had to resign because of ill-health and relocated to the Newcastle area.  He then had two casual positions until about 2000 when he had to retire because of a brain tumour.  The longest he worked in one job was 10 years from 1974 to 1985, when he was head-hunted and took another job.  He said that his marriage was falling apart at that time and matters were finalised with his first wife in 1988.  Otherwise, Mr Heath’s jobs lasted about a year. 

3. Since remarrying in 1991, Mr Heath has lived in different parts of New South Wales.     

4. In 2001, Mr Heath had a meningioma excised from the right brain. He suffered grand mal seizures for the next two years and continues to take anti-epileptic medication (dialantin).  He has a meningioma on the left side of the brain that has not been removed. Mr Heath had a malignant melanoma on his right side of his back fully excised in 2004 with no evidence to suggest recurrence or metastasis. He was diagnosed with a basal cell carcinoma in 2007 on the lower lid of his left eye which was excised and has not recurred.

5. Mr Heath’s wife had major surgery in 2004. Her mother died in 2005 after a protracted illness.  Mr Heath’s mother then died.

The medical evidence     

1. Mr Heath argued that his service medical records were incomplete and therefore no record of his OCD was available.  He pointed out that there was no medical record for the years 1957, 1958, 1960, and 1962, nor in relation to his submission for discharge, and the records in 1959, 1961 and 1963 were very brief. 

2. The medical evidence before the Tribunal in addition to that in the T documents, included the following clinical notes and reports:

• Raymond Terrace Medical Practice from 15 February 2002 to 29 July 2010;

• Evans Head Medical Centre from 13 December 2006 to 13 October 2009;

• Lake Munmorah Medical Practice from 21 May 2009 to 5 September 2015;

• Mingara Medical Practice from 15 July 2013 to 6 June 2016;

• Coastwide Psychology & Counselling including a report from Mr Cooke dated 15 July 2010 and handwritten notes;

• a bundle of documents from Mr Johnson, clinical psychologist, who prepared a report dated 16 February 2009 following referral from Dr Watterston on 11 November 2008;

• reports from Dr Hinton, General Adult and Forensic Psychiatrist, to the Department of Veterans Affairs, dated 7 December 2011, 24 February 2012, 11 April 2012 and 26 April 2012 and a letter to the Commonwealth Ombudsman dated 29 February 2012;

• a report of Dr Smith, consultant psychiatrist, dated 17 August 2016.

1. Mr Heath provided print-outs from internet sites Better Health Channel and the Royal College of Psychiatrists about OCD.

Mr Heath’s evidence and supporting documentation

1. Mr Heath has provided extensive documentary material in support of his case and gave oral evidence at the hearing.

2. The contemporaneous records relating to Mr Heath’s colour blindness show that he:

• was recorded as “Red green blind” on 24 October 1956;

• had failed the Ishihara Test for colour-blindness and was referred for a Lantern Test, and on 8 July 1963 a doctor recorded “CVD UNSafe on Giles Archer lamp”; 

• was then referred for the purpose of colour testing with the diagnosis “unsafe on Giles Archer Lamp and Ishihara” and on 1 August 1963 was determined to be “Colour Defective – Safe”.

1. The Tribunal understands “CVD” to be the acronym for “colour vision defective”.  Mr Heath gave the following evidence.  Several days after being rated “unsafe”, an officer told him very firmly that he could not be in the Royal Australian Army Service Corps (RAASC), hold a military driving licence, or command transport units.  He was only 26 years old with a young family and could not go out into the world.  When he did the test which resulted in the CV “safe” rating, he was assisted and made mistakes.  The tester pulled him up and corrected him. Mr Heath said that he could not be “unsafe” and seven days later be “safe”.   He said that the “safe” rating was given to keep him in the Corps to keep the numbers up, without regard to his safety.  He said that the director of military medicine admitted that he had been “unsafe” throughout his entire career. 

2. The following is a summary of Mr Heath’s evidence about his service and the incidents and events related to his colour blindness which he claimed impacted adversely upon him.  He described his treatment variously as demeaning, bullying, harassment and humiliation.  He reported that it affected his self-confidence and self-esteem.  He felt let-down by the Army.  He felt anger and frustration with the Army.

3. In 1958, Mr Heath was asked by an officer to go to Darkes Forest to reconnoitre areas for an exercise by national servicemen.  He was given a compass and map and told to meet the officer on a road at 4:30 PM. He could not read the colours of the shading on the map.  He got lost overnight and got out at 8 AM. When he returned to his battalion he was told to see the Colonel. A Major told him that he had “buggered up” the battalion’s training and they had organised planes at Bankstown and search teams. The Colonel made light of it, but from then on whenever there was a formal dinner, and there were up to 30 or 40 guests in the officers’ mess, Mr Heath had to stand on a coffee table with his blue jacket on back to front and relate how he had gotten lost.  He did not drink alcohol until he went to the battalion.  At the following Christmas party, he was made Father Christmas.  He had to drink wine to get the courage to do it.  It had a devastating effect on him.

4. When he was posted to a transport company at Ingleburn, a Major talked about parachute duties and air dispatch and said Heath could not participate because he is colour blind. It followed him for the rest of his time.

5. When Mr Heath was doing Corps training at Puckapunyal, he failed miserably doing air supply drops because he could not see the green and red flares outlining the drop zone.

6. Mr Heath had to cheat when he did a course at Puckapunyal and was being assessed for promotion. The students had to go into the bush individually and sight a pretend unit. They were given coloured triangles which they had to attach to a tree. They were required to draw the formation on a map.  Because of his defective vision, Mr Heath went into a nearby town and bought some bias binding which he then wrapped around the trees so he could see it. The others were amused. The Brigadier in charge went into the bush and chose Mr Heath to assess. The Brigadier asked Mr Heath what he had done and Mr Heath explained.  When the exercise had finished and they had returned to the assembly point, the Brigadier said that they would stop an hour early to allow Mr Heath to take the bandages off the tree. In the mess that night, everyone thought it was very funny and made jokes. Mr Heath said that there were many jokes made during his service because of his defective vision.

7. Mr Heath trained soldiers at Wacol in Queensland for four years. They were warned that they would be deployed to Vietnam. He made sure his unit was ready to go but he was shipped out to the UK to do a food supply course at the end of 1966 and his unit went to Vietnam in 1967 without him as commander.   He was never again placed in command of soldiers. He spent 15 months in the UK and went to serve with UK units in Germany. He was promoted to Major in 1969. 

8. After the UK, Mr Heath was posted to Director, Supplies and Transport in Canberra. He approached the Corps Director, a Colonel, and volunteered for Vietnam. Mr Heath believed that his career could not advance if he did not have active service. A week later, the Colonel told Mr Heath that that he was just one person and they could not send him as an officer because there was no place for him. Mr Heath believes that the Brigadier in the office next  to the Colonel, who was the Brigadier involved in the tree-bandaging exercise, would have told the Colonel that Mr Heath could not go to Vietnam because he was colour-blind.

9. Mr Heath believed that a lot of his peers thought that if you did not go to Vietnam you did not want to go.  He attended a gathering of retired officers in Sydney where a person said everyone there would have seen active service.   He was the only one who had not.

10. Notwithstanding his defective vision, Mr Heath did not blot his copy book.  He put his head down and did his very best.

11. No-one from the Service Corps or Ordinance Corps, to which he had been posted in 1970, approached him to ask him to reconsider his resignation when he put it in in 1971. Mr Heath said that he was not much use to them.

12. Mr Heath told the Tribunal that he knew that what he was doing during his service was weird but he did not know it was OCD.  He said that it increased after he was told he could not go to Vietnam.  He was in he married quarters rattling windows.  He said that a certain psychologist said that he was doing better and related that to his leaving the Army.

13. Mr Heath told the Tribunal that he loved the Army and did not want to leave.  He said that he left because he loved it.  His career was going nowhere.   In his letter dated 27 February 2013 in relation to his DART application, Mr Heath wrote that after being posted to an administrative job, the stress, anxiety and embarrassment carried too much pressure and he believed his only course was to resign. Mr Heath told the Tribunal that his work record after leaving the Army shows how he felt.  The work was below his capacity but he took it on.

Consideration of the evidence and submissions

1. There is no doubt on the evidence that Mr Heath suffers from OCD.  What has to be determined is the date of onset and whether the cause is Mr Heath’s service. Mr Heath contends that his OCD was caused by his mistreatment and difficulties during service because of his colour blindness.

2. The first reference to OCD in the documentary evidence is in the clinical notes from the Raymond Terrace Medical Practice.  On 17 May 2004, when Mr Heath had stiches removed after the initial excision of the melanoma on the right side of his back, he told his then general practitioner, Dr Welbourne, that he was depressed and had symptoms of OCD nature. Dr Welbourne prescribed efexor “75 mg 1 daily” “at patients (sic) request”. On review on 1 June 2004, Dr Welbourne recorded that Mr Heath had ceased taking efexor after a few days because of “pretty mild nausea”.  The doctor prescribed efexor 37.5 mg one daily for two weeks and then one twice a day.  On review on 22 July 2004, Dr Welbourne recorded that Mr Heath found efexor was “effective at lifting mood and preventing OCD behaviour” but he stopped taking it because “the benefit was not worth putting up with the side effects”, which he listed. 

3. On 5 July 2006, Dr Nightingale recorded that Mr Heath needed a referral to Mr Peters, psychologist, to see him about seeking some “sort of compensation from his work with the Army”, and “Ex-wife made him leave the Army and Gary feels that the pressure of his job drove his wife to doing this.”  She provided a referral.

4. On 22 September 2006, Dr Welbourne recorded that Mr Heath was moving to Evans Head the next week.  On 14 September 2007, a health summary was sent to a practice at Evans Head.

5. On 7 August 2007, Dr Watterston recorded “15 years in Army. talk re disabilities he could claim .. skin cancer, melanoma, left knee pain..?sounds like Cartilage..xray”. 

6. On 21 April 2008, Dr Watterston recorded “Counselled re health Talk re Repat claim”.

7. On 28 October 2008, Dr Watterston recorded “Talk re OCD…for 2710...and ref P Johnson”.

8. On 13 November 2008, Dr Watterston recorded that the reason for contact was OCD and he created letters about a Mental Health Assessment and referral to Mr Johnson, psychologist.

9. Mr Johnson, psychologist, wrote a report dated 16 February 2009.  He noted the following.  Mr Heath reported having had OCD symptoms for “as long as he could remember including during his service in the Army”, which was confirmed by his son. Mr Heath associated his OCD to being required to “check, recheck and double check” during his service, and this behaviour was sustained after he left the Army. Mr Heath gave a history about the way he was treated in the Army as a result of his colour blindness and said that it left him feeling “highly insecure” and “highly anxious and distressed” for the rest of his career and that these feelings had continued since that time. Mr Heath recognised that his OCD symptoms worsened as his anxiety levels rose, including during his dispute about his eligibility for disability pension which had been going on for four years as of the end of 2008.

1. Mr Johnson concluded that the history supplied by Mr Heath suggested that his long-lasting stress and anxiety condition (OCD) were the result of his army experience.

2. Mr Johnson’s clinical notes include two records that Mr Heath’s first wife wanted him out of the army. One says that “I was just a case – stressful”, another says that she “objected to everything I wanted to do in the army”.  Another note says that she “detested” the Army and threatened separation when he was offered a promotion.  Another note says that Mr Heath’s sister “has panic attacks”.

3. On 26 August 2009, Dr Watterston recorded a request for patient records to be sent to the Lake Munmorah practice.  The clinical notes from the Lake Munmorah practice show that Mr Heath began filling out forms seeking compensation for his service from 26 May 2009. However, the wrong forms were completed and errors were made filling them in. The initial entries referred to a back injury during service.

4. On 9 November 2009, Dr Raghavendra recorded that Mr Heath “suffers with OCD—seen paul johnson, psychologist couple years ago”, “symptoms stable” “suffers with anxiety symptoms”. He also recorded, somewhat inconsistently, “OCD symptoms-feels worsening recently” and detailed the checking behaviours.

5. On 27 November 2009, Dr Raghavendra recorded that Mr Heath was suffering from anxiety symptoms and colour blindness, served in the military from 1957 to 1971 and “feels his anxiety is triggered off since then”, noted that Mrs Heath was present and that OCD symptoms were worsening, recorded various checking behaviours and planned to refer Mr Heath to a psychologist.  The referral was written and a Mental Health Care Plan was prepared on 11 December 2009.

6. On 18 December 2009, Dr Raghavendra recorded that Mr Heath was “here for letter to Army”. He recorded Mr Heath’s claim for disability pension for mental health which had been declined several times since 2004, and that his anxiety symptoms were worsening since 2004. The doctor noted that Mr Heath declined medications.

7. Mr Cooke, psychologist, wrote a report dated 26 April 2010. He found that the applicant was “suffering significant symptoms of Obsessive Compulsive Disorder and perfectionism”.  He took a history that symptoms reportedly began during the applicant’s service “when his colour blindness necessitated extreme reactions, measures and self-protective behaviour to manage his situation, followed by significant maladjustment to being eventually discharged as ‘defective – unfit’ for Army service”.

8. On 12 July 2010, Dr Raghavendra recorded that Mr Heath “thinks his anxiety and OCD is connected to the malignant melanoma operation – 3 May 2004”. The record shows that a referral was sent to a psychiatrist, however, there is no report from that psychiatrist in the summonsed documents.

9. On 14 September 2010, Mr Heath again consulted Dr Welbourne at the Raymond Terrace Medical Practice. The doctor recorded that Mr Heath’s claim for solar skin damage had been accepted by DVA but his claim for anxiety and OCD had not. However, Mr Heath had been told that his mental health problem would be covered if it was caused by the melanoma. Mr Heath reported that since the melanoma excision, he worried about a recurrence or a new lesion forming and his obsessive and compulsive traits had become more marked. Mr Heath had asked Dr Welbourne to write to “DVA regarding this”.  Dr Welbourne noted that he recalled that Mr Heath “was an anxious type” and that pre-dated the excision, but that Mr Heath found the diagnosis, initial excision and the wider excision very stressful. 

10. Dr Cassidy, psychiatrist, saw Mr Heath on 11 May 2011 at the request of the respondent and prepared a report dated 11 October 2011.  The doctor diagnosed GAD and stated:

    based on the long history of low grade anxiety symptoms which appear to have been present since his early twenties.  It appears that there has been some worsening in his symptoms since 2004 with more increased frequency of subpanic symptoms and increased checking behaviours.

11. Dr Cassidy detailed those checking behaviours.  He wrote that if the melanoma was caused by his service, Mr Heath’s GAD symptoms could be said to be related to his service. 

12. The clinical notes for the Lake Munmorah practice report the course of Mr Heath’s claims for compensation for service and refer to his anxiety and OCD in various entries until 5 September 2013 when there was a request to transfer the notes to the Mingara Medical Practice.  The clinical notes reflect his frustration with the compensation system.  On 29 May 2013, Dr Lloyd recorded that Mr Heath had received a white card from DVA who seemed to now agree GAD and other conditions are DVA related. The comment “satisfied” is then recorded.  After liability was accepted, on 23 November 2011 Mr Heath was referred to Dr Hinton, psychiatrist. The notes indicate that Mr Heath saw Dr Hinton on numerous occasions until 17 October 2012 when Dr Hinton discharged Mr Heath for the time being. The note on that date, says “does feel has helped significantly” and “no resolution from DVA”. From the records, that comment seems to relate to a claim for defective administration causing Mr Heath undue distress.

13. Dr Hinton’s reports of 7 December 2011, 28 March 2012 and 11 April 2012 each comprised one paragraph.  His first report stated that Mr Heath was suffering GAD.  On 29 February 2012, Dr Hinton wrote a letter to the Commonwealth Ombudsman in relation to Defective Administration, in which he diagnosed GAD “with some concurrent obsessional symptoms” and stated that Mr Heath “developed an anxiety disorder during his Army service and this has worsened as a consequence of the poor and tardy response to his original claim which now dates back almost seven years”.

14. Dr Rees, consultant psychiatrist, assessed Mr Heath on 10 December 2012 at the request of the respondent and wrote a report dated 19 December 2012.  Her diagnosis was adjustment disorder with anxious and depressed mood in relation to a diagnosis of melanomas in 2004, which had improved over the years, but she considered that GAD had continued.  She wrote that Mr Heath had an “underlying” OCD “and as he has become older the symptoms have worsened in the context of a” GAD.  She reported that Mr Heath had seen Dr Hinton 18 times, at a frequency of once or twice weekly until the Department of Veterans Affairs refused to pay for any more sessions.  She wrote that it appeared that Mr Heath had had some cognitive behavioural therapy and graded exposure therapy to assist him with his checking and counting behaviours.  Mr Heath told Dr Rees that those issues had improved with treatment but were “still there to a degree”.  Mr Heath reported checking and counting behaviours since 1971 and his only treatment was efexor in 2004. Dr Rees wrote that his treatment “this year” included a high dose antidepressant, escitalopram, which would be helpful, particularly for his anxiety” and OCD.  Dr Rees did not address the cause of OCD.

15. Dr Barrett, consultant psychiatrist, assessed Mr Heath on 25 August 2015 at the request of the Department of Veterans Affairs. Her report is dated 17 September 2015.   Mr Heath told Dr Barrett that he had first experienced symptoms of checking when he was in his 20s and was told he was not going to Vietnam, which had “brought the world crashing down”.  Dr Barrett’s diagnosis was OCD and GAD. She stated that both are anxiety disorders and therefore there is significant cross-over between the symptoms of the conditions. In her opinion, the functional impact of the two conditions cannot be separated and therefore cannot be rated separately, including for the purpose of determining impairment.  She gave “worrying” as an example of a symptom of both conditions, which may be time-consuming.  Dr Barrett rated Mr Heath’s impairment from the two conditions combined at 10%.

16. Dr Barrett wrote that both OCD and GAD are chronic conditions that tend to wax and wane depending on external stressors and other factors. She did not consider that further psychological treatment was likely to be particularly effective because of the chronicity of the conditions, Mr Heath’s unwillingness to engage in psychological treatment and a failure of psychological treatment to be effective in the past.  She reported that she had no objective evidence regarding dates of onset or severity of symptoms in the past and she did not know the extent to which other problems in his relationships and serious medical problems, including brain tumours and surgery, had increased the severity of his symptoms and contributed to his current condition.

17. Later in her report, Dr Barrett listed external stressors including the break-up of Mr Heath’s first marriage, estrangement from three of his four adult children, and serious medical conditions, including two brain tumours, one of which is currently still being monitored and three melanomas in 2004. She commented: “It is possible that the tumours and/or surgery, could have further contributed due to neurological changes”. 

18. Dr Barrett reported that there was an exacerbation of the OCD and GAD in 2004 and that “therefore 2004 would be the nominated date when his condition became stable at this level”.

19. In response to a question asking Dr Barrett to describe the extent of the contribution of Mr Heath’s service to the conditions, and selecting from the words provided, Dr Barrett answered “According to Mr Heath’s reports, influential, major, significant”. In response to the question asking whether the employment-related aspects of the conditions were likely to continue indefinitely, Dr Barrett wrote: “unfortunately once these conditions develop, they are self-perpetuating and continue even though the initial trigger may have resolved”.

20. Dr Kumeran, medical adviser, wrote a minute dated 23 September 2015 in which she expressed the opinion that the onset of OCD was unclear in the presence of probable genetic vulnerability and that it was unlikely that service in 1963 made a significant contribution to the onset of the condition.

21. Dr Smith, consultant psychiatrist, assessed Mr Heath on 16 August 2016 at the request of the respondent’s solicitors.  He prepared a report dated 17 August 2016 and gave evidence before the Tribunal.  Dr Smith’s diagnosis was that Mr Heath was suffering from GAD and OCD.  Dr Smith had difficulty accepting that GAD was related to Mr Heath’s military service as the respondent had accepted.  He did not consider that the OCD was related to Mr Heath’s service. Dr Smith did not consider that further psychiatric or psychological treatment would be beneficial and doubted whether the ongoing use of citalopram was benefiting Mr Heath.

22. Mr Heath claimed that he was only with Dr Smith for 25 minutes and the face to face interview took only 15-18 minutes. He said that the appointment was a semi-disaster and that he sent an email of complaint the next day.  He said that Dr Smith had insufficient knowledge of his condition.

23. Mr Heath gave inconsistent evidence about whether he reported any symptoms of OCD during his service. He said that:

• he did not seek any medical treatment for symptoms of OCD;

• he did not report anything because he did not want to be humiliated;

• he did not recall reporting anything but he may have;

• it could have been picked up in an annual medical examination.

1. When asked about ticking the box “No” in the medical history questionnaire filled out prior to discharge in response to a question asking if he had a “mental illness nervous breakdown”, Mr Heath said he would not have thought of OCD as a breakdown. It was pointed out to Mr Heath that there was a section for further comments and he could have listed his symptoms.  Mr Heath said that he just ticked the appropriate columns.

2. Mr Heath denied that he left the Army because of his first wife and that his sister suffered from panic attacks.  When asked if there was any report of OCD symptoms from the time he left the army in 1971 until 2004, Mr Heath said that he had had no treatment because he had not claimed anything. 

Conclusion

1. The Tribunal does not accept that Mr Heath’s evidence is reliable. His claim that his OCD was caused by his treatment during service as a consequence of colour blindness has evolved since he suffered serious illnesses from 2001 to 2004 and then began seeking compensation for various conditions by relating them to his service. There is no contemporaneous document supporting his claim that he suffered from symptoms of OCD during his service. There is no contemporaneous documentary evidence about him suffering symptoms of OCD until 2004. 

2. Mr Heath is very disappointed that he did not serve in Vietnam and that he had a desk job rather than a role commanding troops after returning from the UK.  However, there is no evidence that corroborates his belief that the reason for either of those eventualities was his colour blindness. To the contrary, in a document dated 22 May 1969, only two years before Mr Heath resigned from service, an officer wrote:

   It is indeed a pity that because of Service reasons it has not to date been possible to give him the benefit of active service in Vietnam.

3. Mr Heath interprets “Service reasons” as his colour blindness.  The Tribunal does not accept that interpretation.  In the same document, the officer answered “No” to the question “Are there any reasons why this officer has not performed at his best during the past year (eg, ill health, domestic worries, housing difficulties, etc)” and recommended Mr Heath to command troops.  The Tribunal has taken into account the statement which is partly obscured, and reads “months he has largely overcome a previous … tendency to worry unduly and … more positive in his approach” but does not accept that it is evidence of OCD. The officer made laudatory remarks about Mr Heath including that he has “a high sense of duty and responsibility”, is “constructive in his work”, “has a very pleasant and gentlemanly manner”, “good sense of humour and is well-regarded and popular officer”. 

4. The Tribunal accepts Dr Smith’s opinion, as expressed in response to a question from Mr Heath, that Mr Heath’s service was not the cause of his OCD. Dr Smith comprehensively reviewed the evidence, including the T documents and Supplementary T documents, documents produced by Dr Hinton, Evans Head Medical Centre, Lake Munmorah Doctors Surgery, Mr Johnson, Raymond Terrace Family Practice, Coastwide Psychology & Counselling, and Mingara Medical and DART, as well as interviewing Mr Heath. The Tribunal finds Dr Smith’s analysis of the material and his assessment of Mr Heath’s condition persuasive.  He has not relied on and accepted Mr Heath’s unsupported claims uncritically.   The Tribunal does not agree with Mr Heath’s assessment that Dr Smith had insufficient knowledge of his condition.

5. To the extent that the medical evidence before the Tribunal relates Mr Heath’s claimed ill-treatment during service to his OCD symptoms, as outlined above, the Tribunal finds that evidence relies on Mr Heath’s claims, which the Tribunal does not accept because it does not consider his evidence to be reliable.

6. The Tribunal’s findings would be the same whether it applied the causation test of contributed to a significant degree or the earlier test of contributed to in a material degree. 

Decision

1. The Tribunal affirms the reviewable decision made on 5 April 2016 that affirmed the decision made on 21 October 2015 to deny liability for “Obsessive Compulsive Disorder”.

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Associate

Dated: 26 May 2017

Date(s) of hearing:	14 February 2017
Applicant:	In person
Solicitors for the Respondent:	Brendan O'Brien, Moray & Agnew