Hewitt and Repatriation Commission
[2007] AATA 2088
•21 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2088
ADMINISTRATIVE APPEALS TRIBUNAL ) N2004/1139
) N2006/654
VETERANS APPEALS DIVISION )
Re PETER HEWITT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member
Dr I Alexander, MemberDate21 December 2007
PlaceSydney
DECISION
Decision Matter N2006/654 – The Tribunal varies the assessment decision of the VRB dated 16 May 2006, and awards pension at 70% of the general rate from 10 September 2001 to the date of this decision, 21 December 2007. As Mr Hewitt no longer has conditions accepted as war-caused from 21 December 2007, he is not entitled to disability pension. Mr Hewitt is not entitled to intermediate or special rate of pension.
Matter N2004/1139 - The Tribunal affirms that part of the decision of the VRB dated 27 July 2004 which found that Mr Hewitt does not suffer PTSD with Major Depression. In substitution the Tribunal finds that Mr Hewitt suffers Generalised Anxiety Disorder and Alcohol Abuse with depressive episodes, but finds that these conditions are not war-caused.
....................(Sgd)..........................
Ms G Ettinger
Senior Member
CATCHWORDS
Veteran – operational service in Vietnam - PTSD diagnosed when Veteran first sought medical assistance in 1998 – long history of applications - generalised anxiety disorder and Alcohol Dependence and Abuse accepted – whether the Veteran suffers depressive illness - whether intermediate or special rate applicable – this Tribunal finds that the Veteran suffers GAD and Alcohol Abuse and depressive episodes – not war-caused – special rate not granted.
Veterans Entitlements Act 1986 ss 9, 23, 24, 120
Statements of Principles:
Alcohol Dependence or Abuse Instrument No 76 of 1998
Anxiety Disorder Instrument No 101 of 2007
Generalised Anxiety Disorder Instrument No 48 of 1994 Instrument No 275 of 1995
Depressive Disorder Instrument No 17 of 2007 & Instrument No 58 of 1998
Post Traumatic Stress Disorder Instrument No 3 of 1999Repatriation Commission v Cooke (1998) 90 FCR 307
Budworth v Repatriation Commission (2001) 63 ALD 422
Repatriation Commission v Deledio (1998) 83 FCR 82
Lees v Repatriation Commission (2002) 125 FCR 331
Youngnickel v Repatriation Commission[2004] FCA 1691
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Keeley (2000) 98 FCR 108
Gorton v Repatriation Commission (2001) 63 ALD 723
Woodward v Repatriation Commission (2003) 131 FCR 473
Stoddart v Repatriation Commission (2003) 197 ALR 283REASONS FOR DECISION
21 December 2007 Ms G Ettinger, Senior Member
Dr I Alexander, Member
1. Mr Peter Hewitt, the Applicant in this matter, has had a long and stressful history of making pension claims in relation to his war service which was from 23 April 1969 to 22 April 1971. His operational service was in the Australian Army in Vietnam from 9 September 1970 to 25 March 1971. Mr Hewitt also served in the Army Reserve.
2. He made several applications in regard to entitlement to, and assessment of pension, and on appeal, the Veterans Review Board (VRB), adjourned on several occasions while further information was sought in relation to his claims. It has been a long road for him with some disappointments.
3. Mr Hewitt first consulted Dr Altman his treating psychiatrist in early 1998, who diagnosed Post Traumatic Stress Syndrome (PTSD), Major Depression and Alcohol Dependence. These conditions were rejected by the Repatriation Commission and the Veterans Review Board (VRB) when he applied for them to be accepted as war-caused.
4. In 2000, the matter came before the AAT on appeal. On 16 June 2000 the Tribunal gave effect to a consent decision between the parties which set aside the decision of the Repatriation Commission dated 15 July 1998 refusing Mr Hewitt’s claim for PTSD with associated Major Depression, and Alcohol Abuse and Alcohol Dependence. In substitution, the Tribunal found that the Veteran’s condition of Generalised Anxiety Disorder (GAD), was war-caused, his impairment rating was 24, and his lifestyle rating, 2.
5. Mr Hewitt was granted pension at 40% of the general rate with effect from 26 February 1998 (T8), and on 18 February 2002, at 70% of the general rate, with effect from 10 September 2001.
6. The two matters before this Tribunal were:
· Matter N2006/654 relates to a claim by Mr Hewitt for increase to his pension, which he made in 2001. On 18 February 2002, he was awarded disability pension at 70% of the general rate with effect from 10 September 2001. The VRB affirmed the assessment decisions on 16 May 2006 (T37). On 30 May 2006, Mr Hewitt applied to this Tribunal for pension to be paid at either the Intermediate Rate or the Special Rate.
· Matter N2004/1139 relates to the refusal by the Repatriation Commission dated 5 February 2004, and the VRB, dated 27 July 2004, of the claim for PTSD with Major Depression. In 2004, the Respondent did eventually find that Mr Hewitt suffered PTSD, but found he suffered no incapacity as a result, and found it was not war-caused. The VRB adjourned the application in relation to the claim for Alcohol Dependence or Alcohol Abuse, and invited the Repatriation Commission to review the accepted disability of Generalised Anxiety Disorder pursuant to section 31 of the Act. It also continued pension at 70% of the general rate. On 3 September 2004, Mr Hewitt appealed the decision to this Tribunal claiming that “the decision that no medical condition is present to answer claim of post traumatic stress disorder with associated depression and Alcohol Abuse is wrong.”
7. Notwithstanding GAD and Alcohol Dependence or Alcohol Abuse had previously been accepted as war-caused, Ms McCulloch who appeared for the Respondent Repatriation Commission, argued before this Tribunal that the accepted conditions were in issue.
8. We noted that Mr Hewitt was not seeking to have PTSD with Major Depression accepted, but was seeking to have GAD with Alcohol Abuse and depressive episodes accepted as war-caused. Referring to the Tribunal decision of 2000, Mr Dawson submitted:
“It wouldn’t have made the decision otherwise and in effect that decision and the agreement between the parties was a decision of everybody that the preferred diagnosis was a diagnosis of Generalised Anxiety Disorder and with all respect to Dr Altman, his diagnosis was not the correct diagnosis.” (Transcript, 9.10.07, p1)
9. Mr Hewitt’s accepted conditions at the time of this hearing were:
·Alcohol Dependence or Alcohol Abuse (accepted 7 April 2003)
·General Anxiety Disorder (accepted 2000)
The following were not accepted:
·Post Traumatic Stress Disorder (25 February 1998)
·Depressive Disorder (13 July 1999)
·Post Traumatic Stress Disorder with Major Depression (no incapacity found) (27 July 2004)
10. On the basis of all the evidence before us, the legislation and case law, we decided that Mr Hewitt suffers GAD and Alcohol Abuse with depressive episodes, but that the conditions are not war-caused.
11. We also held that he is eligible for pension at 70% of the general rate from 10 September 2001 to the date of this decision, being 21 December 2007, and zero from the date of publication of this Decision. He is not eligible for pension at the intermediate or the special rate pursuant to section 24 of the Act.
12. Our reasons follow.
THE LEGISLATION
The relevant legislation in this matter is the Veterans’ Entitlements’ Act 1986, (the Act) in particular sections 9, 23, 24 & 120. The standard of proof for diagnosis of a condition before the Tribunal to decide whether it is war-caused, is to the reasonable satisfaction of the Tribunal pursuant to section 120(4) of the Act (Repatriation Commission v Cooke (1998) 90 FCR 307 and Budworth v Repatriation Commission (2001) 63 ALD 422).
“9 War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational 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 …”
13. The date of effect for the entitlement claim is 7 April 2003, and the date of effect for the special rate of pension, is 1 February 2003, the day after Mr Hewitt resigned from the accountancy firm.
14. As Mr Hewitt’s claim was lodged after 1 June 1994, section 120A of the Act applies in making a decision. This involves assessing the reasonableness of the various hypotheses raised in accordance with the relevant Statements of Principles (SoPs) issued by the Repatriation Medical Authority. The SoPs set out the minimum factors relating to service that must exist in order to establish a causal connection between particular diseases and injuries and service.
ISSUES TO BE DECIDED
15. Ms McCulloch told us that the conditions previously having been found to be war-caused, that is GAD and Alcohol Abuse or Alcohol Dependence were in issue.
16. Ms McCulloch also argued that based on Dr Lewin’s assessment of July 2003, and Dr Haik’s assessment of 10 October 2006, the assessment of pension at 40% of the general rate should be from 10 September 2001 to 10 October 2006, and that it should be zero from 10 October 2006.
17. We noted from the large amount of material in the claims before us that the Applicant was not seeking to pursue rights under any diagnosis of PTSD and Major Depression, or Alcohol Dependence which had earlier been made by his treating psychiatrist Dr Altman. He was seeking:
· To have the diagnosis of GAD with Alcohol Abuse and depressive episodes accepted as war-caused;
· For the Tribunal to find Mr Hewitt eligible for pension at the special rate or intermediate rate.
BACKGROUND
18. We think it is of importance to record certain parts of the Applicant’s history. Mr Hewitt was born in India on 18 November 1948, and attended school in England, Malaysia and India. He arrived in Australia when he was approximately 14 years old, joined the Commonwealth Bank when he was about 16, and worked there until 1969, when at the age of approximately 20, he enlisted in the Australian Army.
19. His training in the Army consisted of three months recruit training, then training as a steward, followed by a three week Battle Efficiency Course just prior to being posted to Vietnam. Mr Hewitt served on operational service in the Australian Army in Vietnam from 9 September 1970 to 25 March 1971. He told us he worked as a steward in the Sergeant’s mess at Nui Dat where he shared a tent with three others. He said that he was on his own a lot, because their days off did not coincide with his.
20. Approximately two months after Mr Hewitt arrived at Nui Dat, he was required to do picket duty at the front gate of the base which meant when that when alarms sounded, he and others were required to mount an armoured personnel carrier (APC), and “stand-to”, to protect the perimeter of the base. Mr Hewitt told the Tribunal that he had to do that some 30 times; we noted that he told Dr Altman and Dr Dinnen it was 6 – 8 times. Mr Hewitt described the experience as very frightening, because he felt he was not trained for combat, had never discharged the weapons he carried, and did not know if the alarm was activated for training purposes or because of an enemy threat. He has described this reaction of fear consistently to the doctors who examined him, and to the Tribunal, and we were satisfied the “stand-to” exercises, and the Vietnam experience had some effect upon Mr Hewitt. It has been relied on as the stressor or stressful event for purposes of the claim. We noted that the medical records both before and after service indicate his “emotional stability” as normal (R1/T3).
21. Mr Hewitt was discharged from the Army on 22 April 1971, and on the day following his discharge, 23 April 1971 (T3/5), enlisted in the Army Reserve for three years. The records indicate that Mr Hewitt was again discharged on 1 October 1974, after three years, and re-enlisted on 27 May 1975 (T3/7), in the Reserve. We noted that Mr Hewitt did not tell the psychiatrists to whom he was referred for examination about his involvement in the Reserve. The Respondent made submissions to the effect that the re-enlistment indicated Mr Hewitt was not avoiding contact with the Army and with war as he had indicated in his evidence.
22. After his discharge from the Army in 1971, Mr Hewitt returned to his employment at the Commonwealth Bank, and reached managerial status, although he told us he felt he could have done better in his employment had he not been suffering war-caused psychological illness. We noted that Mr Hewitt worked for the Commonwealth Bank for approximately 30 years, and that on a restructure in 1994, he took a redundancy, planning to find another position. He joined an accountancy firm in 1995, and became a director of that firm. Mr Hewitt retired from the accountancy firm on 31 January 2003 (Exhibit R6), telling us that the reason was he could no longer continue due to his illness.
23. Mr Hewitt applied for pension at the special rate very shortly after leaving the accountancy firm on 31 January 2003. Ms McCulloch referred us to Dr Altman’s notes (Exhibit R7), in which Dr Altman had recorded discussing with Mr Hewitt, his diagnosis, his difficulties at work, his resignation from the accountancy firm, and his intention to seek special rate pension. Mr Hewitt agreed that he had discussed his pension with Dr Altman, and that Dr Altman had inquired over a period of time how matters were progressing in that regard. That is also reflected in Dr Altman’s notes which are Exhibit R7. As Dr Altman was Mr Hewitt’s treating psychiatrist, we did not find that unusual.
24. Ms McCulloch also drew to our attention the fact that Mr Hewitt made financial arrangements such as dealing with superannuation, and putting loans in place before his retirement, implying that if he was able to do all that, he was not psychiatrically impaired. We noted the submissions, but accept that it was a prudent thing for Mr Hewitt to secure his financial situation before his retirement. We were not satisfied that any illness he suffered in 2003 would have prevented him from arranging his financial affairs.
25. We noted that Mr Hewitt has a history of drinking alcohol excessively. Alcohol Abuse or Alcohol Dependence was accepted as war-caused from 7 April 2003. However we need to decide whether he suffers either of those, and if so, whether either is war-caused. Mr Hewitt told us that he had his first drink when he was 17 years old, and that he was a social drinker before he went to Vietnam. He said that after his return he drank a lot to cope, and to get through the day. Mr Hewitt told us that in his years at the Bank, he drank at lunchtime. He said that he drank 6 – 10 stubbies a day, and bought two four litre casks of wine a week. He said that the drinking escalated, but had plateaued over the past four or five years. He said that he drinks every day, and has done so except for the week he spent in hospital in 2000 in regard to heart problems. We noted that Mr Hewitt’s service records in 1975 indicate he reported drinking 3 – 4 beers a day.
26. Mr Hewitt said that he consulted Dr Altman in early 1998 after making contact with the Vietnam Veterans’ Association, because he got to the stage where he wasn’t able to concentrate, he was drinking heavily, he was constantly tired and was “quite testy with people” (transcript 21.6.07, p41). Dr Altman recorded that Mr Hewitt was then, (in 1998), and had been for the previous ten years, drinking 8 - 10 beers a day, and 8 - 12 on a weekend. He recorded that Mr Hewitt reported an increase in drinking over the years after returning from Vietnam. Dr Altman diagnosed severe chronic PTSD with associated Major Depression and Alcohol Dependence, which was as a result of his service.
27. Dr P Whetton, also a psychiatrist, examined the Applicant on behalf of the Respondent, and reported on 26 July 2005 (R2/T32/205) that Mr Hewitt presented with “marked symptoms of psychiatric deterioration occurring from 1998.” He diagnosed chronic depressive illness and Alcohol Dependence ... both severe and chronic, and considered Mr Hewitt “significantly and permanently disabled … I think it is impossible for this man to work. I do believe his psychiatric condition is related to his war service. He is a very disturbed individual.”
28. The VRB then determined on 22 November 2005 that Mr Hewitt’s Alcohol Dependence or Alcohol Abuse was war-caused, and adjourned the assessment issues (R2/T33). A further report by Dr Morris, another psychiatrist followed. On 7 March 2006 he diagnosed Alcohol Dependence, Major Depressive Episode and GAD, but opined that he could not make the diagnosis of PTSD. He stated that in his opinion Mr Hewitt was unable to undertake remunerative work because of his emotional and behavioural impairment, most significantly because of Alcohol Dependence. He apportioned the inability to work as being due to Alcohol Dependence, 60%, GAD, 10% and Major Depressive Episode, 30%.
29. We also had before us three reports of Dr R Lewin, another psychiatrist who examined Mr Hewitt on behalf of the Respondent, with reports dated 10 January 2000 (R2/T7), 19 November 2001 (R2/T14), and 8 July 2003 (T23).
30. In his first report, dated 10 January 2000 (R2/T7), Dr Lewin diagnosed GAD, which he said was possibly related to Mr Hewitt’s war service, and was an exacerbation of a previously established condition. Dr Lewin diagnosed Alcohol Abuse, but not Alcohol Dependence, and mild depressive symptoms (perhaps related to a relationship break-up). His opinion formed the basis for the consent agreement of 16 June 2000 at this Tribunal (which found that Mr Hewitt suffers GAD which is war-caused).
31. In his report of 19 November 2001, (R2/T14), Dr Lewin confirmed, as previously, Alcohol Abuse and GAD, as the appropriate diagnoses. He noted that Mr Hewitt reported depressive symptoms of recent origin, and “continuing anxiety symptoms consistent with a long established pattern”. Dr Lewin diagnosed a Major Depressive Episode of which he opined there had been no evidence when he examined Mr Hewitt two years previously. Dr Lewin also noted that Mr Hewitt described increasing difficulties at work.
32. Dr Lewin’s final report was dated 8 July 2003 (R2/T23). In it he reported Mr Hewitt having left work on 31 January 2003 due to fears that he could no longer cope, that he lacked concentration, and that he feared a physical altercation could have resulted if he had stayed on. Dr Lewin opined that Mr Hewitt’s complaints were consistent with the diagnosis of GAD, and Alcohol Abuse. Dr Lewin considered that Mr Hewitt’s depressive symptoms had largely settled.
33. A further report at R2/T17 dated 3 March 2003, was that of Dr M Prior, a psychiatrist for HAS. Dr Prior found that Mr Hewitt suffered PTSD (chronic subtype) together with co-morbid Major Depressive Disorder and Alcohol Dependence. He opined that the conditions had worsened since the late 1990s and continued to do so.
34. We also had reports of Dr Dinnen dated 13 December 1999 (Exhibit A1), and 4 May 2007 (Exhibit A2) before us, as well as Dr Dinnen’s oral evidence. In his first report, Dr Dinnen said that he did not agree with Dr Altman’s diagnosis of PTSD. However he stated that he was in sympathy with the view that “this patient’s vulnerable and avoidance type of personality led him to be very much traumatised by his experience in Vietnam … I am certain this has left him with a life long disability, namely a chronic psychiatric disorder as a consequence of that service”. Dr Dinnen diagnosed GAD.
35. In his later report of 2007, and in his oral evidence, Dr Dinnen confirmed his diagnosis of GAD, adding that the condition was associated with intermittent Depressive Disorder and Alcohol Abuse. Dr Dinnen told us that he was in agreement with Dr Lewin’s diagnosis of GAD. He commented that when he examined Mr Hewitt the Applicant did not suffer Major Depression, but that he had depressive symptoms which do fluctuate over time. He opined that it was part of the GAD and not a separate disorder.
36. Dr Dinnen said in his oral evidence that he agreed with Dr Whetton that Mr Hewitt is very disturbed, and that he cannot work, but considered that Dr Whetton, while referring to Mr Hewitt’s anxiety, had overlooked the diagnosis of GAD. He remarked that Dr Morris had been very thorough in his diagnosis, and that he too diagnosed GAD, which Dr Dinnen said had its clinical onset during service. As to Dr Haik; Dr Dinnen commented that Dr Haik had focused on the depressive aspects of Mr Hewitt’s illness, and that at page 9 of Dr Haik’s report, (Exhibit R3), he had reported Mr Hewitt being fearful and socially anxious. Dr Dinnen opined that Mr Hewitt was a chronic worrier, and that all the doctors who had examined him had noted this. Dr Dinnen noted that Dr Haik had diagnosed Avoidant Personality and that his replies to Table 4.1 (page 11 of his report), were inconsistent with that diagnosis, and with the rating of 42 for GARP. Dr Dinnen also opined that one could have an avoidant personality without it being a disorder.
37. Commenting on Dr Morris’ report, Dr Dinnen said that apportionment (as done by Dr Morris) was not customary, and opined that Mr Hewitt suffered GAD, and that the depressive features and Alcohol Abuse or Dependence were associated with the GAD.
38. Dr Dinnen’s reaction when told that Mr Hewitt had joined the Army Reserve after leaving the Army, was that it did not change his diagnosis, as patients were known to confront situations in order to deal with their fears. Dr Dinnen acknowledged the information that Mr Hewitt had worked in the Bank over many years, noting that the Applicant told him he felt he could have achieved more had he not had his illness. When told that Mr Hewitt had bought property and shares, and negotiated a mortgage before leaving work, Dr Dinnen said that he did not think that was unusual given the nature of Mr Hewitt’s work in the financial field. He said that the pressures and lack of concentration Mr Hewitt reported related to his work environment, which was not inconsistent with being able to arrange his personal financial affairs.
39. Dr Haik produced a report dated 10 October 2006 as a result of his examination of Mr Hewitt at the request of the Respondent, and upon which the Respondent has relied in relation to Mr Hewitt. Dr Haik diagnosed Avoidant Personality Disorder and a long term low-grade Dysthymic Disorder, adding that these conditions are plausibly constitutional in origin. He confirmed this view in his oral evidence. He conceded that the service in Vietnam whilst not causing these conditions, “possibly aggravated his discontent for a short period in the early 1970s.” Dr Haik opined that the Avoidant Personality Disorder explains Mr Hewitt’s social anxiety, his isolation, his tension when in close contact with others, e.g. in the workplace, and his excessive intake of alcohol. Dr Haik concluded that neither Mr Hewitt’s Avoidant Personality Disorder or Dysthymic Disorder were as a result of his operational service in Vietnam. He did not agree with the diagnoses of PTSD, GAD or Alcohol Dependence.
40. In his oral evidence Dr Haik opined that Mr Hewitt self medicated with alcohol to alleviate his unhappiness. He said that a Dysthymic Disorder was not uncommon for someone with an avoidant personality. Dr Haik said that the Applicant met the DSM conditions for Alcohol Abuse (not Dependence), as he had been convicted of drink driving, something Mr Hewitt had not disclosed to him. Dr Haik remarked that Mr Hewitt had seen seven psychiatrists, and that he was worn out, not from Vietnam, but disabled by his avoidant personality. He emphasised Mr Hewitt had worked in managerial positions for 30 years post Vietnam and had joined the Reserve. As to work presently; Dr Haik said that Mr Hewitt was not able to work because he had become intolerant and had enough of work.
41. We were satisfied that Mr Hewitt gave a reasonably consistent history of his childhood and background to the doctors who examined him. Notwithstanding a long history of claims, and various accepted and non-accepted conditions, we did not find there was a problem with the way Mr Hewitt recounted his history. He gave a consistent history regarding his duties in Vietnam and how the “stand-to” affected him, his drinking habits, his social isolation, and his difficulties coping at work.
42. We were mindful that Ms McCulloch raised issues of credit in regard to Mr Hewitt, but we did not find that such issues were a problem in this case. However in order to find whether any conditions Mr Hewitt suffers are war-caused, we have to apply the legislation and SoPs.
43. As to the taking of a history, the only doctor with whom we take issue is Dr Haik, because rather than asking Mr Hewitt in detail about his early history, Dr Haik relied on other medical reports, in particular the reports of Dr Lewin, to produce his report. We found that unsatisfactory, and accordingly where there were opposing opinions given, we preferred the evidence of the psychiatrists who had taken a more comprehensive history. That included the opinion of Dr R Lewin, a psychiatrist also qualified by the Respondent. In addition we were not satisfied that Dr Haik had diagnosed correctly because he disclosed in his oral evidence that he had not referred to the DSM-IV when making the diagnosis.
THE ENTITLEMENT CLAIM
44. We were mindful that Mr Hewitt was not seeking before us to have PTSD with Major Depression and Alcohol Abuse diagnosed and/or accepted as war-caused. However due to the way this matter has emerged, and because claim number N2004/1139, the decision of the VRB dated 27 July 2004 (R2/T29), is the decision Mr Hewitt is appealing, we must decide whether Mr Hewitt suffers PTSD with Major Depression and Alcohol Abuse, and if so, whether they are war-caused.
45. Mr Dawson argued that GAD was the appropriate diagnosis, and we noted that Mr Hewitt was seeking that GAD, with Alcohol Abuse and depressive episodes be accepted as war-caused
46. Before being able to apply the tests in Repatriation Commission v Deledio (1998) 83 FCR 82, and the steps outlined in that case to decide whether Mr Hewitt’s conditions are war-caused, we needed to consider the diagnoses and the dates of onset of any conditions claimed (Lees v Repatriation Commission (2002) 125 FCR 331, Youngnickel v Repatriation Commission [2004] FCA 1691).
47. As stated above, the standard of proof for the diagnoses is to the reasonable satisfaction of the Tribunal pursuant to section 120(4) of the Act.
DOES MR HEWITT SUFFER PTSD
48. Mr Hewitt was referred to Dr Altman in 1998 to deal with his psychiatric problems. Dr Altman has been his treating psychiatrist since that time, and had diagnosed severe chronic PTSD with Major Depression and Alcohol Dependence in 1998. We had numerous of his reports before us, and his medical notes as Exhibit R7.
49. In a report at R2/T4, Dr Altman took a history of Mr Hewitt feeling alienated, lonely, and in a stressful situation in Vietnam where he had to participate in a “stand-to” situation 6 – 7 times. He also recorded the Applicant suffering nightmares, avoiding talking about his Vietnam experiences, and suffering recurrent intrusive thoughts about it. Dr Altman opined that Mr Hewitt presented with a number of significant depressive symptoms, including low mood, sleep disturbance and impaired concentration.
50. Dr Altman also took a history of Mr Hewitt’s drinking, recording that the Applicant reported drinking approximately 6 – 10 beers per day and approximately 12 beers per day on weekends whereas before he went to Vietnam, he drank alcohol socially.
51. Dr Altman confirmed the diagnosis made in March 1998, and opined that the conditions the Applicant suffered were war-related disorders. He emphasised the stressor Mr Hewitt relied on which was that Mr Hewitt told him he had to “stand-to” six to seven times in Vietnam, Mr Hewitt reporting to Dr Altman that:
“every time the ‘stand-to’ siren went off we would have to go down to the gate and mount the APCs when they arrived – I was frightened, I was scared, I was nervous and just very agitated and nervous. Sometimes the big guns would be firing and it was a very very frightening situation for me. Your stomach was physically sick – your hands were shaking …
I thought at any time I could get killed and that is what scared me …”
52. In Dr Altman’s report of 25 July 2001 (R2/T9), he confirmed his view that Mr Hewitt suffered severe chronic PTSD with associated Major Depression and Alcohol Dependence. He opined:
“I have elaborated on Mr Hewitt’s stressors that he was exposed to in Vietnam as apparently his stressors were not considered severe enough to cause a Post-traumatic Stress Disorder. In my opinion the stressors that he was exposed to in Vietnam were stressful enough to cause a Post-traumatic Stress Disorder and were life threatening to him.”
53. In further reports Dr Altman wrote regarding his diagnosis of Mr Hewitt’s “war-related” psychiatric impairment and illness, which he endorsed as continuing.
54. The Respondent had Mr Hewitt examined by Dr Lewin, also a psychiatrist, and on the basis of his report, in 2000, as has already been stated, the Tribunal made a consent decision on 16 June 2000, in which it gave effect to a settlement between the parties. The Tribunal set aside the decision of the Repatriation Commission dated 15 July 1998 refusing Mr Hewitt’s claim for PTSD with associated Major Depression, and Alcohol Abuse and Alcohol Dependence. In substitution, the Tribunal found that his condition of Generalised Anxiety Disorder (GAD), was war-caused, his impairment rating was 24, and his lifestyle rating, 2.
55. However on the basis of Dr Altman’s diagnosis, a Departmental Review Officer held on 14 April 2004 that the presence of PTSD was confirmed, but found that “there is nothing in the available evidence that would establish a link between this disability and your service”. It was on the basis of this finding that the Repatriation Commission refused Mr Hewitt intermediate or special rate pension on the basis that his inability to work was not due to his accepted disabilities alone (R2/T27).
56. We noted that the only other doctor to diagnose PTSD was Dr Prior, who also diagnosed co-morbid Major Depressive Disorder and Alcohol Dependence. Dr Prior’s report was at R2/T17 (3 March 2003), and the Work Service Pension Claim Work Test Questionnaire he completed, at Exhibit R8.
57. We noted that Drs Dinnen, Lewin and Morris whose reports we had before us did not agree that Mr Hewitt suffers PTSD, rather that the correct diagnosis is GAD.
58. We considered the tests for PTSD in DSM IV which are as follows:
“post traumatic stress disorder” means a psychiatric condition meeting the
following description (derived from DSM-IV):
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was
confronted with an event or events that involved
actual or threatened death or serious injury, or a
threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear,
helplessness, or horror; and
(B) the traumatic event is persistently re-experienced in one or
more of the following ways:
(i) recurrent and intrusive distressing recollections of
the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were
recurring (including a sense of reliving the
experience, illusions, hallucinations, and dissociative
flashback episodes, including those that occur on
awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal
or external cues that symbolize or resemble an
aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or
external cues that symbolize or resemble an aspect
of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma
and numbing of general responsiveness (not present before
the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations
associated with the trauma;
(ii) efforts to avoid activities, places, or people that
arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in
significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving
feelings);
(vii) sense of a foreshortened future (eg, does not expect
to have a career, marriage, children, or a normal life
span); and
(D) persistent symptoms of increased arousal (not present
before the trauma), as indicated by two or more of the
following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
Page 3 of 5 of Instrument No.3 of 1999.
(E) duration of the disturbance (indicated by the relevant
symptoms set out in paragraphs (b), (c) and (d)) is more than
one month; and
(F) the disturbance causes clinically significant distress or
impairment in social, occupational or other important areas
of functioning”
59. We acknowledged from Mr Hewitt’s evidence that he had some flashbacks, that he avoided places where he would see Asian people, that he was irritable (certainly by 2003 when he finally left work), and that he felt isolated. We also noted the reports of Drs Altman and Prior that the Applicant exhibited certain of the characteristics or behaviours listed above in relation to PTSD, but having also referred to the severe stressor required to be met for a diagnosis of PTSD which is in part (A) of the DSM-IV definition above, and refers to a traumatic event, we were not satisfied that Mr Hewitt suffers PTSD as diagnosed by Drs Altman and Prior. We note also that we had before us their written reports, but did not have the opportunity of hearing any oral evidence.
60. Accordingly, as we find that Mr Hewitt does not suffer PTSD, we do not need to consider whether that condition is war-caused. We were mindful also that Mr Hewitt was not claiming PTSD.
DOES MR HEWITT SUFFER GAD
61. The DSM-IV definition of GAD is reproduced below.
“generalised anxiety disorder” means a psychiatric disorder that is a generalised anxiety disorder attracting ICD code 300.02, and which meets the following description (derived from DSM-IV):
(a) excessive anxiety and worry (apprehensive expectation), occurring more
days than not for at least six months, about a number of events or activities (such as work or study), which:
the person finds difficult to control; and
(ii) which is associated with three or more of the following six
symptoms, at least some of which are present for more days than not for the previous six months:
(A) restlessness or feeling keyed up or on edge;
(B) being easily fatigued;
(C) concentration difficulties or mind going blank;
(D) irritability;
(E) muscle tension;
(F) sleep disturbance (difficulty falling or staying asleep, or
restless unsatisfying sleep); and…”
62. As we have already said, before there was any diagnosis of GAD made, Dr Altman who had been treating Mr Hewitt since 1998, diagnosed severe chronic PTSD with associated Major Depression and Alcohol Dependence. In a report at R2/T4, Dr Altman took a history of Mr Hewitt feeling alienated, lonely, and in a stressful situation in Vietnam where he had to participate in a “stand-to” situation 6 – 7 times. He also recorded the Applicant suffering nightmares, avoiding talking about his Vietnam experiences, and suffering recurrent intrusive thoughts about it. Dr Altman opined that Mr Hewitt presented with a number of significant depressive symptoms, including low mood, sleep disturbance and impaired concentration. Dr Altman also took a history of Mr Hewitt’s drinking. Dr Altman who has been treating Mr Hewitt, has been confirming the diagnosis he made in 1998 for a number of years, and opining that the conditions are war-caused.
63. Dr Prior was the only other psychiatrist who diagnosed PTSD (R2/T17 dated 3 March 2003), and he considered it was co-morbid with Major Depressive Disorder and Alcohol Dependence.
64. We have considered Drs Altman and Prior’s diagnosis of PTSD in the paragraphs above, and are satisfied that Mr Hewitt does not suffer that illness.
65. The majority of the other psychiatrists, in particular Drs Dinnen, Morris and Lewin, diagnosed GAD, and Dr Dinnen opined that depressive episodes were part of the GAD. Dr Lewin mentioned depressive episodes occurring over the period he examined Mr Hewitt between 2000 and 2003. As already noted above, it was on the basis of Dr Lewin’s report of early 2000 that the consent decision was made at the AAT finding Mr Hewitt’s suffers GAD which is war-caused.
66. Dr P Whetton examined the Applicant and reported on 26 July 2005 (R2/T32). Dr Whetton stated that Mr Hewitt presented with “marked symptoms of psychiatric deterioration occurring from 1998.” He diagnosed chronic Depressive Illness and Alcohol Dependence ... both severe and chronic, and considered Mr Hewitt “significantly and permanently disabled … I think it is impossible for this man to work. I do believe his psychiatric condition is related to his war service. He is a very disturbed individual.”
67. Dr Haik diagnosed Avoidant Personality Disorder and a long term low-grade Dysthymic Disorder, adding that these conditions are plausibly constitutional in origin. He confirmed this view in his oral evidence. He conceded that the service in Vietnam whilst not causing these conditions, “possibly aggravated his discontent for a short period in the early 1970s.” Dr Haik opined that the Avoidant Personality Disorder explains Mr Hewitt’s social anxiety, his isolation, his tension when in close contact with others e.g. in the workplace, and his excessive intake of alcohol. Dr Haik concluded that neither Mr Hewitt’s Avoidant Personality Disorder or Dysthymic Disorder were as a result of his operational service in Vietnam. He did not agree with the diagnoses of PTSD, GAD or Alcohol Dependence.
68. In his oral evidence Dr Haik opined that Mr Hewitt self medicated with alcohol to alleviate his unhappiness. He said that a Dysthymic Disorder was not uncommon for someone with an avoidant personality. Dr Haik said that the Applicant met the DSM conditions for Alcohol Abuse (not Dependence), as he had been convicted of drink driving, something Mr Hewitt had not disclosed to him. He emphasised however that Mr Hewitt had worked in managerial positions for 30 years post Vietnam, and had joined the Reserve.
69. We have already stated above that where other medical opinions were made on the correct DSM-IV criteria, we preferred those to the opinion of Dr Haik who did not do so. We acknowledge that both Drs Dinnen and Lewin referred to personality vulnerability in relation to Mr Hewitt but did not diagnose it as a disorder.
70. We had reports of Dr Dinnen dated 13 December 1999 (Exhibit A1), and 4 May 2007 (Exhibit A2) before us, as well as Dr Dinnen’s oral evidence. Dr Dinnen did not agree with Dr Altman’s diagnosis of PTSD. However he stated that he was in sympathy with the view that “this patient’s vulnerable and avoidance type of personality led him to be very much traumatised by his experience in Vietnam … I am certain this has left him with a life long disability, namely a chronic psychiatric disorder as a consequence of that service”. Dr Dinnen diagnosed GAD.
71. In his later report of 2007, and in his oral evidence, Dr Dinnen confirmed his diagnosis of GAD, adding that the condition was associated with intermittent Depressive Disorder and Alcohol Abuse. Dr Dinnen told us that he was in agreement with Dr Lewin’s diagnosis of GAD. He commented that when he examined Mr Hewitt he did not suffer Major Depression but that he had depressive symptoms which do fluctuate over time. He opined that it was part of the GAD and not a separate disorder.
72. Dr Dinnen opined that Mr Hewitt’s GAD had its clinical onset during service, but did not provide a satisfactory explanation of the condition and point to symptoms that Mr Hewitt suffered which would warrant a conclusion that Mr Hewitt suffered GAD at that time. He also noted that Dr Haik had focused on the depressive aspects of Mr Hewitt’s illness, and that at page 9 of Dr Haik’s report, (Exhibit R3), he had reported Mr Hewitt being fearful and socially anxious. Dr Dinnen opined that Mr Hewitt was a chronic worrier and that all the doctors who had examined him had noted this.
73. Dr Dinnen’s reaction when told that Mr Hewitt had joined the Reserve after leaving the Army, was that it did not change his diagnosis, as patients were known to confront situations in order to deal with their fears. Dr Dinnen acknowledged the information that Mr Hewitt had on his return from Vietnam worked for 30 years in the Bank, noting that the Applicant told him he could have achieved more had he not had his illness. When told that Mr Hewitt had bought property and shares and negotiated a mortgage before leaving work, Dr Dinnen said that he did not think that was unusual given the nature of Mr Hewitt’s work. He said that the pressures and lack of concentration Mr Hewitt reported related to his work environment which was not inconsistent with being able to arrange his financial affairs.
74. In coming to a decision as to whether Mr Hewitt suffers GAD, we took into account his evidence that dating back to the 1970s after he returned from Vietnam, he has been tense and anxious to the extent where he abused alcohol in order to maintain some equilibrium. We accepted Mr Hewitt’s evidence that he drank alcohol during the day in order to cope with work. The evidence he gave about his alcohol consumption which we accepted, was that he drank 8 – 10 stubbies a day, increasing that number on weekends, and that he also regularly drank two four litre casks of wine a week.
75. We noted that Dr Lewin diagnosed GAD in early 2000, and that his report formed the basis for the consent agreement at the Tribunal which held that Mr Hewitt suffered GAD which was war-caused. Dr Whetton opined in 2005 that Mr Hewitt presented with “marked symptoms of psychiatric deterioration occurring from 1998.” Dr Lewin confirmed his diagnosis of GAD again in 2001, and in 2003. In 2003, Dr Lewin reported that Mr Hewitt had left work due to fears he could no longer cope, that he lacked concentration, and that he feared a physical altercation could take place if he continued. Dr Dinnen also confirmed his diagnosis of GAD in his oral evidence, and in a report in 2007.
76. We found Dr Haik’s evidence unsatisfactory, and accordingly where there were opposing opinions given, we preferred the evidence of the psychiatrists Drs Dinnen and Lewin who had taken a more comprehensive history, and diagnosed applying DSM-IV.
77. We have referred to the definition of GAD in DSM-IV as reproduced above, and find from the evidence that Mr Hewitt expressed feeling keyed up and on edge, being easily fatigued, having difficulty concentrating, being irritable, and having sleep difficulties, and are satisfied he meets the definition in DSM-IV.
78. We were satisfied from Mr Hewitt’s evidence and that of the majority of doctors who examined him as discussed above, that he suffers GAD.
79. In order to determine the clinical onset of GAD, we took into account the decision of Lees (supra) where it was stated that all of the required symptoms had to be displayed, (including in conditions such as GAD which have a gradual onset). We are satisfied that Mr Hewitt’s GAD was not diagnosed until after 1998 when he sought psychiatric assistance from Dr Altman, who diagnosed PTSD.
DOES MR HEWITT SUFFER MAJOR DEPRESSION OR A DEPRESSIVE DISORDER
80. The relevant DSM-IV definition follows:
“depressive disorder not otherwise specified" means a disorder with depressive features that does not meet the criteria for major depressive disorder, dysthymic disorder, adjustment disorder with depressed mood, or adjustment disorder with mixed anxiety and depressed mood. The disorders covered by this diagnosis (derived from DSM-IV-TR) include:
(a) Premenstrual dysphoric disorder,
(b) Minor depressive disorder,
(c) Recurrent brief depressive disorder,
(d) Postpsychotic depressive disorder of schizophrenia, a major depressive episode superimposed on delusional disorder, psychotic disorder not otherwise specified, or the active phase of schizophrenia, or
(e) Situations in which the clinician has concluded that a depressive disorder is present but is unable to determine whether it is primary, due to a general medical condition, or substance induced.”
81. We were mindful that Mr Hewitt was not claiming Major Depression. However we are required to consider Depressive Disorder because it was considered in the course of Mr Hewitt’s applications to the Respondent.
82. We noted that when Dr Altman made his diagnosis of severe chronic PTSD with associated Major Depression and Alcohol Dependence in March 1998, he had taken a history of Mr Hewitt feeling alienated, lonely, and in a stressful situation in Vietnam. He also recorded the Applicant suffering nightmares, avoiding talking about his Vietnam experiences, and suffering recurrent intrusive thoughts about it. Dr Altman opined that Mr Hewitt presented with a number of significant depressive symptoms, including low mood, sleep disturbance and impaired concentration.
83. Dr Whetton stated that Mr Hewitt presented with “marked symptoms of psychiatric deterioration occurring from 1998.” He diagnosed chronic depressive illness and Alcohol Dependence ... both severe and chronic, and considered Mr Hewitt “significantly and permanently disabled … I think it is impossible for this man to work. I do believe his psychiatric condition is related to his war service. He is a very disturbed individual.”
84. Dr Morris diagnosed Alcohol Dependence, Major Depressive Episode and GAD in 2006. Commenting on Dr Morris’ report, Dr Dinnen said that apportionment (as done by Dr Morris) was not customary, and opined that Mr Hewitt suffered GAD, and that the depressive features and Alcohol Abuse or Dependence were associated with the GAD.
85. Dr Lewin reported on examinations of Mr Hewitt in reports dated 10 January 2000 (R2/T7), 19 November 2001 (R2/T14), and 8 July 2003 (T23). Dr Lewin was provided with Dr Dinnen’s reports, and stated that he agreed with Dr Dinnen that Mr Hewitt had personality vulnerability. He diagnosed GAD, which he said was possibly related to Mr Hewitt’s war service, and was an exacerbation of a previously established condition. Dr Lewin diagnosed Alcohol Abuse, but not Alcohol Dependence, and mild depressive symptoms (perhaps related to a relationship break-up). He confirmed this in a further report of 19 November 2001, noting that Mr Hewitt reported depressive symptoms of recent origin, and “continuing anxiety symptoms consistent with a long established pattern”. In 2001 Dr Lewin diagnosed a Major Depressive Episode of which he said there was no evidence when he examined Mr Hewitt two years previously.
86. Dr Lewin’s final report was dated 8 July 2003 (R2/T23) where he reported Mr Hewitt had left work due to fears that he could no longer cope, lacked concentration, and that a physical altercation could have resulted if he had stayed. Dr Lewin opined that Mr Hewitt’s complaints were consistent with the diagnosis of GAD, and Alcohol Abuse. Dr Lewin considered that Mr Hewitt’s depressive symptoms had largely settled.
87. Dr Prior considered (in 2003), that Mr Hewitt suffered PTSD together with co-morbid Major Depressive Disorder and Alcohol Dependence. He opined that the conditions had worsened since the late 1990s and continued to do so.
88. Dr Dinnen, diagnosing GAD, said in his oral evidence that he did not agree with Dr Altman’s diagnosis of PTSD. However he stated that he was in sympathy with the view that “this patient’s vulnerable and avoidance type of personality led him to be very much traumatised by his experience in Vietnam … I am certain this has left him with a life long disability, namely a chronic psychiatric disorder as a consequence of that service”. In his later report of 2007, Dr Dinnen confirmed his diagnosis of GAD, adding that the condition was associated with intermittent depressive disorder and Alcohol Abuse. He stated that Mr Hewitt does not suffer Major Depression, but that he has depressive symptoms which do fluctuate over time. He opined that it was part of the GAD and not a separate disorder.
89. Dr Dinnen said in his oral evidence that he agreed with Dr Whetton that Mr Hewitt is very disturbed, and that he cannot work. As to Dr Haik; Dr Dinnen commented that Dr Haik had focused on the depressive aspects of Mr Hewitt’s illness, and that at page 9 of Dr Haik’s report, (Exhibit R3), he had reported Mr Hewitt being fearful and socially anxious. Dr Dinnen opined that Mr Hewitt was a chronic worrier and that all the doctors who had examined him had noted this. Dr Dinnen noted that Dr Haik had diagnosed Avoidant Personality and that his replies to Table 4.1 (page 11 of his report), were inconsistent with that diagnosis and with the rating of 42 for GARP.
90. As already stated, Dr Haik in October 2006, diagnosed Avoidant Personality Disorder and a long term low-grade Dysthymic Disorder, adding that these conditions are plausibly constitutional in origin. He conceded that the service in Vietnam whilst not causing these conditions, “possibly aggravated his discontent for a short period in the early 1970s.” Dr Haik opined that the Avoidant Personality Disorder explains Mr Hewitt’s social anxiety, his isolation, his tension when in close contact with others e.g. in the workplace, and his excessive intake of alcohol.
91. In coming to a decision about whether Mr Hewitt suffers a Depressive Disorder, we were mindful of his evidence, the DSM-IV definition, and the medical reports before us which we have summarised above.
92. We noted that Dr Altman diagnosed Major Depression, and opined that Mr Hewitt presented with a number of significant depressive symptoms, including low mood, sleep disturbance and impaired concentration. As already noted above, Dr Altman also took a history of Mr Hewitt’s drinking. We were mindful of those feelings as Mr Hewitt discussed them when giving his evidence. However when we referred to DSM-IV for the definition of Major Depressive Episode, we were unable to find that Mr Hewitt’s condition over the years (as described by him and the doctors whose reports we have mentioned above), would satisfy the criteria for Major Depression.
93. We noted that Dr Lewin reported over the three year period in which he examined Mr Hewitt three times that the depressive episodes had fluctuated, and that they may have been due to a relationship break-up. Dr Lewin reported mild depressive symptoms in 2000, a Major Depressive Episode of “recent origin” when he saw Mr Hewitt again in 2001, and depressive symptoms improved after Mr Hewitt had left work in 2003. Dr Dinnen considered Mr Hewitt suffered intermittent Depressive Disorder and associated depressive episodes with Mr Hewitt’s GAD.
94. We noted that Dr Whetton found in 2005 that Mr Hewitt presented with marked symptoms of psychiatric illness and diagnosed chronic depressive illness.
95. Dr Haik, whose examination we have commented upon above, attributed social anxiety, isolation and excessive intake of alcohol to Mr Hewitt in terms of Avoidant Personality Disorder and Dysthymic Disorder, the latter being a form of depression. However we have already stated that we prefer the evidence of the other doctors to his, although we noted that Dr Haik also reported Mr Hewitt exhibited social anxiety and isolation which in our view confirm the depressive episodes.
96. Based on the medical evidence given above, we preferred the evidence of Drs Lewin and Dinnen who found Mr Hewitt suffered depressive episodes of varying frequency over Dr Haik’s diagnosis of Dysthymic Disorder, although ultimately that also is a mild state of depression. We have already stated that we were not satisfied with the way Dr Haik took Mr Hewitt’s history, and the fact he did not use DSM-IV as a basis for his diagnosis as he should have.
97. In order to determine the clinical onset of the depressive episodes, we took into account the decision of Lees (supra) where it was stated that all of the required symptoms had to be displayed. We are satisfied that Mr Hewitt’s depressive episodes were not diagnosed until after 1998 when he sought psychiatric assistance from Dr Altman, who in fact diagnosed Major Depression.
DOES MR HEWITT SUFFER ALCOHOL DEPENDENCE OR ALCOHOL ABUSE
98. We have to determine whether Mr Hewitt suffers Alcohol Dependence or Alcohol Abuse.
99. The DSM IV definition for Alcohol Dependence and Alcohol Abuse follows:
“alcohol dependence” means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.
The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:
A maladaptive pattern of alcohol use, leading to clinically
significant impairment or distress, as manifested by three
(or more) of the following, occurring at any time in the
same 12-month period:(1) tolerance, as defined by either of the following:
(a) a need for markedly increased amounts of
alcohol to achieve intoxication or desired
effect
(b) markedly diminished effect with continued
use of the same amount of alcohol(2) withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for
alcohol
(b) the same (or closely related) substance is
taken to relieve or avoid withdrawal
symptoms(3) alcohol is often taken in larger amounts or over a
longer period than was intended(4) there is a persistent desire or unsuccessful efforts to cut down or control alcohol use
(5) a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its
effects(6) important social, occupational or recreational
activities are given up or reduced because of alcohol use(7) alcohol use is continued despite knowledge of having persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol;
“alcohol abuse” means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite
significant alcohol-related problems, however these symptoms
have never met the criteria for alcohol dependence. Additionally,
signs of tolerance or withdrawal are absent.The diagnostic criteria for alcohol abuse are those specified in
DSM-IV, and are as followsA. A maladaptive pattern of alcohol use leading to
clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12- month period:
(1) recurrent alcohol use resulting in a failure to fulfil
major role obligations at work, school, or home(2) recurrent alcohol use in situations in which it is
physically hazardous(3) recurrent alcohol -related legal problems
(4) continued alcohol use despite having persistent or
recurrent social or interpersonal problems caused or exacerbated by the effects of alcoholB. The symptoms have never met the criteria for
alcohol dependence.”
100. We were mindful of Mr Hewitt’s evidence about his drinking habits, commencing with a drink at the age of 17, social drinking before Vietnam, and increasing alcohol consumption afterwards. We noted the Army records of 1975 when Mr Hewitt joined the Reserve which did not mention alcohol specifically, but designated him as normal in relation to emotional stability. We noted the evidence he gave before us, and the information he gave to doctors who examined him over the years from 1998, which was that he has been drinking 8 – 10 beers a day on weekdays and 10 – 12 on weekends supplemented by two four litre casks of wine a week.
101. We were also mindful that after his return from Vietnam, Mr Hewitt worked with the Commonwealth Bank in managerial positions for 30 years, and when made redundant on a restructure, sought further employment with an accountancy firm where he became a director and where he remained until the age of 55 in 2003.
102. We noted that Dr Altman diagnosed severe chronic PTSD with associated Major Depression and Alcohol Dependence in March 1998, and confirmed this over a period of time. This has not been accepted by the Respondent, the Applicant is not claiming those conditions, and we are satisfied the diagnosis is not appropriate.
103. We noted that Dr Whetton examined the Applicant and reported on 26 July 2005 (R2/T32), stating that Mr Hewitt presented with “marked symptoms of psychiatric deterioration occurring from 1998.” He diagnosed chronic depressive illness and Alcohol Dependence ... both severe and chronic, and considered Mr Hewitt “significantly and permanently disabled … I think it is impossible for this man to work. I do believe his psychiatric condition is related to his war service. He is a very disturbed individual.”
104. We are mindful that in this very prolonged matter, the VRB determined on 22 November 2005 on the basis of Dr Whetton’s report that Mr Hewitt’s Alcohol Dependence or Alcohol Abuse was war-caused, and that this was followed by a further assessment by Dr Morris, who, on 7 March 2006, diagnosed Alcohol Dependence, Major Depressive Episode and GAD.
105. Dr Prior found in 2003 that Mr Hewitt suffered PTSD together with co-morbid Major Depressive Disorder and Alcohol Dependence. He opined that the conditions had worsened since the late 1990s and continued to do so.
106. As stated above, Dr Haik diagnosed Avoidant Personality Disorder and a long term low-grade Dysthymic Disorder, adding that these conditions are plausibly constitutional in origin. He did not agree with the diagnoses of PTSD, GAD or Alcohol Dependence. He acknowledged that Mr Hewitt drank excessively, but attributed it to the Avoidant Personality Disorder, he had diagnosed, and to social anxiety and isolation.
107. In coming to a decision about whether Mr Hewitt suffers Alcohol Dependence or Alcohol Abuse, we were mindful of his evidence regarding the amount of alcohol he consumes. We have referred to that above. We also noted that Drs Altman, Whetton and Morris all opined that Mr Hewitt suffers Alcohol Dependence.
108. We are mindful of the three reports of Dr R Lewin dated 10 January 2000 (R2/T7), 19 November 2001 (R2/T14), and 8 July 2003 (T23). Drs Lewin and Dinnen agreed substantially on the diagnosis. Both agreed Mr Hewitt had personality vulnerability and suffers GAD. Dr Lewin diagnosed Alcohol Abuse, but not Alcohol Dependence, while Dr Dinnen considered that Mr Hewitt’s Alcohol Abuse and depressive episodes were part of the GAD.
109. Having considered the tests in DSM-IV for Alcohol Abuse and Alcohol Dependence, we are satisfied that Mr Hewitt has never met the criteria for Alcohol Dependence. One of the reasons for this was that we noted that when Mr Hewitt had to be hospitalised in relation to his heart problems, he appeared to be able to abstain from alcohol without severe withdrawal.
110. We are satisfied he has however had one driving conviction for alcohol and that he has continued to use excessive amounts of alcohol providing for continuing social isolation and interpersonal problems. We are satisfied that he has had a maladaptive pattern of alcohol use even though he told us it has plateaued over the past five years or so.
111. We are satisfied from the medical evidence, that of the Applicant himself and applying the tests in DSM-IV, that Mr Hewitt suffers Alcohol Abuse.
112. In order to determine the clinical onset of the Alcohol Abuse, we took into account the decision of Lees (supra) where it was stated that all of the required symptoms had to be displayed. We are satisfied that Mr Hewitt’s Alcohol Abuse was not correctly diagnosed until after 1998 when he sought psychiatric assistance from Dr Altman, who in fact diagnosed Alcohol Dependence.
APPLICATION OF THE PRINCIPLES IN REPATRIATION COMMISSION v DELEDIO (1998) 83 FCR 82
113. We have found in the paragraphs above that the correct diagnosis of Mr Hewitt’s conditions is GAD, Alcohol Abuse and depressive episodes. As Mr Hewitt has operational service, the determination regarding whether his claimed conditions are war-caused must be made taking into account the principles in Deledio (supra).
114. The steps as outlined by the Full Federal Court in Deledio (supra) follow:
“…the course which the tribunal is to take in a case, such as the present, (ie 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 [is] as follows:
1The 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.
2If 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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3If 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.
4The 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.”
115. With respect to determining when an hypothesis is reasonable, we noted Heerey J's approach in Deledio v Repatriation Commission (1997) 47 ALD 261 which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (1993) 177 CLR 564 and was approved in Repatriation Commission v Deledio (1998) 83 FCR 82:
“Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts;
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.”
116. We turned then to decide whether, applying the principles set out in Deledio (supra), the material raised a hypothesis connecting Mr Hewitt’s conditions of GAD, Alcohol Abuse and depressive episodes with his war service. It was their onset, conformity with the relevant SoPs, and the decision whether they were war-caused pursuant to the legislation which were in issue. We did not consider whether PTSD or Major Depression or Alcohol Dependence were war-caused, because we were satisfied that Mr Hewitt does not suffer those conditions.
117. The following SoPs apply in this case:
Statements of Principles:
Alcohol Dependence or Abuse Instrument No 76 of 1998
Anxiety Disorder Instrument No 101 of 2007
Generalised Anxiety Disorder Instrument No 48 of 1994 & Instrument No 275 of 1995 & Instrument No 1 of 2000
Depressive Disorder Instrument No 17 of 2007 & Instrument No 58 of 1998
Post Traumatic Stress Disorder Instrument No 3 of 1999
IS MR HEWITT’S GENERALISED ANXIETY DISORDER WAR-CAUSED
118. In considering whether Mr Hewitt’s GAD is war-caused, we had to first apply Step 1 in Deledio (supra), and considering the whole of the material before us consider whether it raises an hypothesis linking Mr Hewitt’s GAD to his war service. There must be no fact finding at this stage.
119. The whole of the material in relation to the hypothesis is as follows.
120. The incidents Mr Hewitt relies on as the hypothesis linking his GAD to his war service are what he was required to do on picket duty at the front gate of the base approximately two months after he arrived at Nui Dat. He said that when alarms sounded, he and others were required to mount an armoured personnel carrier (APC), and “stand-to”, to protect the perimeter of the base. Mr Hewitt told the Tribunal that he had to do that some 30 times; he told Dr Altman and Dr Dinnen it was 6 – 8 times.
121. His reaction to the events were his description that the experience was very frightening, because he felt he was not trained for combat, had never discharged the weapons he carried, and did not know if the alarm was activated for training purposes or because of an enemy threat. He has described this reaction of fear to the doctors who examined him, and to the Tribunal, also stating that he was so upset he would go to the latrines and vomit after the event.
122. Drs Dinnen, Morris and Lewin, diagnosed GAD, and Dr Dinnen opined that depressive episodes were part of the GAD. Dr Lewin mentioned depressive episodes occurring over the period he examined Mr Hewitt between 2000 and 2003.
123. Dr Whetton reported in 2005 that Mr Hewitt presented with “marked symptoms of psychiatric deterioration occurring from 1998.” He diagnosed chronic Depressive Illness and Alcohol Dependence ... both severe and chronic, and considered Mr Hewitt “significantly and permanently disabled … I think it is impossible for this man to work. I do believe his psychiatric condition is related to his war service. He is a very disturbed individual.”
124. Dr Haik diagnosed Avoidant Personality Disorder and a long term low-grade Dysthymic Disorder, conceding that the service in Vietnam whilst not causing these conditions, “possibly aggravated his discontent for a short period in the early 1970s.” Dr Haik opined that the Avoidant Personality Disorder explains Mr Hewitt’s social anxiety, his isolation, his tension when in close contact with others e.g. in the workplace, and his excessive intake of alcohol.
125. Dr Dinnen reported in 1999 and 2007 as well as giving oral evidence, and diagnosing GAD. He stated that he was in sympathy with the view that “this patient’s vulnerable and avoidance type of personality led him to be very much traumatised by his experience in Vietnam … I am certain this has left him with a life long disability, namely a chronic psychiatric disorder as a consequence of that service”.
126. On consideration of the total amount of the material before us, a hypothesis can be raised linking Mr Hewitt’s GAD with his war service.
127. The next step in Deledio (supra) is then to consider whether there are the appropriate SoPs. The SoPs for GAD are Instrument No 48 of 1994, Instrument No 275 of 1995, and for Anxiety Disorder, Instrument No 1 of 2000. Taking into account the principles established in Repatriation Commission v Keeley (2000) 98 FCR 108 and Gorton v Repatriation Commission (2001) 63 ALD 723, we are satisfied that Instrument No 48 of 1994 should be applied in this case.
128. We noted that where a SoP has been determined pursuant to section 196B(2) of the Act, it sets out the factors which must, as a minimum exist before it can be said that a reasonable hypothesis has been raised. We must then form the opinion whether the hypothesis raised linking Mr Hewitt’s GAD with his war service is a reasonable one. It will be so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised must thus contain one or more of the factors which the RMA 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.
129. In Instrument No 48 of 1994, the relevant factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting GAD with the circumstances of Mr Hewitt’s service, are:
“(a) …
(b) experiencing a stressful event not more than two years before the
clinical onset of generalised anxiety disorder; or(c) experiencing a stressful event not more than two years before the
clinical worsening of generalised anxiety disorder; or
…..”
130. Accordingly if Mr Hewitt meet the tests in Instrument No 48 of 1994 then a reasonable hypothesis can be raised linking his claimed condition of GAD with his war service.
131. The stressor on which Mr Hewitt relies is from Instrument No 48 of 1994 as follows:
“stressful event” means an occurrence which evokes feelings of anxiety or stress.
132. We considered all the material surrounding the stressful event upon which Mr Hewitt relies which was the “stand-to” occurrences in which he was involved in Vietnam, and Mr Hewitt’s reactions which he described in his evidence as being very frightened because he did not know whether the exercise was a for training purposes or an enemy threat. He also explained how after such an event he would go to the latrines and vomit. We noted that a stressful event in the SoP is described as an occurrence which evokes feelings of anxiety or stress.
133. We looked to the diagnoses of GAD which were made by Drs Dinnen, Lewin and others, and to 1998, when Mr Hewitt first sought psychiatric assistance. Dr Dinnen who first saw Mr Hewitt in 1999 opined that his conditions of GAD, with alcohol abuse and depressive episodes were war caused, and did not specify a date for the clinical onset of GAD. Dr Lewin opined in 2000, that Mr Hewitt’s GAD was “possibly” linked to his war service.
134. In order to consider whether Mr Hewitt’s situation fits the template in the SoP, and whether he experienced a stressful event not more than two years before the clinical onset of GAD, or experienced a stressful event not more than two years before the clinical worsening of GAD, the date of onset of his conditions was relevant.
135. With reference to clinical onset; the Full Federal Court in Lees (supra) stated that the purpose of the definition of GAD in the SoP is to identify those symptoms which if observed by a clinician, would warrant a conclusion that the patient suffered from GAD in order to establish sufficient proximity between the experiences during operational service and the manifestation of the disease. After having considered all the material before us we have found that there was no material that pointed to a conclusion that either in the period during operational service or in the two years following the stressful event relied upon by Mr Hewitt, he had symptoms which would support a conclusion that he suffered from GAD.
136. Accordingly having reviewed the whole of the material before us we find that none of the minimum factors set out in the SoP is raised by the evidence in this case. It does not raise a reasonable hypothesis linking Mr Hewitt’s GAD with his war service. Therefore the hypothesis is not reasonable, and the application to have GAD found to be war-caused must fail. We do not need to further consider section 120(1).
137. In Instrument No 1 of 2000, the relevant factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting GAD with the circumstances of Mr Hewitt’s service, are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise
specified, only
(i) …
(ii) experiencing a severe psychosocial stressor within the two
years immediately before the clinical onset of anxiety
disorder; or
Page 3 of 6 of Instrument No.1 of 2000
(iii) having a clinically significant psychiatric condition within
the two years immediately before the clinical onset of
anxiety disorder; or
138. We noted that there were no submissions made about any severe psychosocial stressor. This SoP did not in any case apply in Mr Hewitt’s case.
IS MR HEWITT’S ALCOHOL ABUSE WAR-CAUSED
139. In considering whether Mr Hewitt’s Alcohol Abuse is war-caused, we have to first apply Step 1 in Deledio (supra), and considering the whole of the material before us consider whether it raises an hypothesis linking Mr Hewitt’s Alcohol Abuse to his war service. There must be no fact finding at this stage.
140. The whole of the material in relation to the hypothesis is as follows.
141. The incidents Mr Hewitt relies on as the hypothesis linking his GAD to his war service are what he was required to do on picket duty at the front gate of the base approximately two months after arrival at Nui Dat. It was picket duty at the front gate of the base which meant when that when alarms sounded, he and others were required to mount an armoured personnel carrier (APC), and “stand-to”, to protect the perimeter of the base. Mr Hewitt told the Tribunal that he had to do that some 30 times, and told Drs Altman and Dinnen it was 6 – 8 times.
142. Mr Hewitt described the experience as very frightening, because he felt he was not trained for combat, had never discharged the weapons he carried, and did not know if the alarm was activated for training purposes or because of an enemy threat. He has described this reaction of fear to the doctors who examined him, and to the Tribunal, also stating that he was so upset he would go to the latrines and vomit after the event.
143. Dr Dinnen reported in 1999 and 2007 and diagnosed GAD. He stated that he was in sympathy with the view that “this patient’s vulnerable and avoidance type of personality led him to be very much traumatised by his experience in Vietnam … I am certain this has left him with a life long disability, namely a chronic psychiatric disorder as a consequence of that service”.
144. On consideration of the total amount of the material before us, an hypothesis can be raised linking Mr Hewitt’s Alcohol Abuse with his war service.
145. The next step in Deledio (supra) is then to consider whether there are the appropriate SoPs. Taking into account the principles established in Keeley (supra) and Gorton (supra), we are satisfied that the SoP for Alcohol Abuse is Instrument No 76 of 1998.
146. We noted that where an SoP has been determined pursuant to section 196B(2) of the Act, it sets out the factors which must, as a minimum exist before it can be said that a reasonable hypothesis has been raised. We must then form the opinion whether the hypothesis raised linking Mr Hewitt’s Alcohol Abuse with his war service is a reasonable one. It will be so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised must thus contain one or more of the factors which the RMA 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.
147. The relevant factor in Mr Hewitt’s case was factor 5(b):
“5.(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
148. Accordingly, if Mr Hewitt meets the tests in Instrument No.76 of 1998, then a reasonable hypothesis can be raised linking his claimed conditions of alcohol abuse to his war service. In that connection, we considered all the evidence and case law with regard to Mr Hewitt "experiencing a severe stressor" within the terms of the SoP.
149. A severe stressor is defined in Instrument No.76 of 1998 as follows:
"experiencing a severe stressor" means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person’s physical integrity, which events might evoke intense fear, helplessness or horror.”
150. We considered whether all the material regarding the “stand-to” Mr Hewitt claimed to have experienced raised a reasonable hypothesis linking the claimed condition of Alcohol Abuse to his war service, and constituted a “severe stressor” as claimed, which led to the Alcohol Abuse. We were mindful of Mr Hewitt’s stated reaction to the “stand-to” incidents, and considered whether they could be characterised as Mr Hewitt experiencing, witnessing or being confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person’s physical integrity which events might evoke intense fear, helplessness or horror. He recounted being afraid because he had never fired weapons, and did not know whether the “stand-to” was by way of an exercise or the real thing.
151. There is ample case law with regard to what constitutes a “severe stressor” in the terms of the SoP. Woodward v Repatriation Commission (2003) 131 FCR 473 is authority for this area and now puts less emphasis than previously on the objective event. Stoddart v Repatriation Commission (2003) 197 ALR 283 is another important authority.
152. We considered the definition of “severe stressor” and whether Mr Hewitt experienced, witnessed or was confronted with actual or threat of death or serious injury, or that they were a threat to Mr Hewitt or other another person’s physical integrity. Relying on Woodward (supra) and Stoddart (supra), and without fact finding, it would seem that the evidence before us regarding the “stand-to” incidents pointed to by Mr Hewitt where there was no enemy seen, and where he did not leave the camp perimeter, cannot meet the tests for having experienced a “severe stressor” in the terms of Instrument No 76 of 1998.
153. We looked to the diagnoses of Alcohol Abuse which were made by Drs Dinnen, Lewin and others, and to 1998 when Mr Hewitt first sought psychiatric assistance. Dr Dinnen who first saw Mr Hewitt in 1999 opined that his conditions of GAD, with Alcohol Abuse and depressive episodes were war caused, but did not specify a date for the clinical onset. Dr Lewin opined in 2000, that Mr Hewitt’s conditions were “possibly” linked to his war service.
154. In order to consider whether Mr Hewitt’s situation fits the template in the SoP, and whether he experienced a severe stressor not more than two years before the clinical onset of Alcohol Abuse, or experienced a stressful event not more than two years before the clinical worsening of Alcohol Abuse, the date of onset of his conditions was relevant.
155. We have referred above the test for clinical onset in Lees. There is no material before us in relation to Mr Hewitt’s Alcohol Abuse which points to Mr Hewitt having features to support that diagnosis in the two years following the stressful event upon which he relies during his operational service. There was no material which pointed to features and symptoms of Alcohol Abuse by the requisite time.
156. Accordingly having reviewed the whole of the material before us we find that none of the minimum factors set out in the SoP is raised by the evidence in this case. It does not raise a reasonable hypothesis linking Mr Hewitt’s Alcohol Abuse with his war service. Therefore the hypothesis is not reasonable, and the application to have Alcohol Abuse found to be war-caused must fail. We do not need to further consider section 120(1).
ARE MR HEWITT’S DEPRESSIVE EPISODES WAR-CAUSED
157. In considering whether Mr Hewitt’s depressive episodes are war-caused, we have to first apply Step 1 in Deledio (supra), and considering the whole of the material before us consider whether it raises an hypothesis linking Mr Hewitt’s depressive episodes to his war service. There must be no fact finding at this stage.
158. The whole of the material in relation to the hypothesis is as follows.
159. The incidents Mr Hewitt relies on as the hypothesis linking his depressive episodes to his war service are what he was required to do on picket duty at the front gate of the base approximately two months after arrival at Nui Dat. He counted that when alarms sounded, he and others were required to mount an armoured personnel carrier (APC), and “stand-to”, to protect the perimeter of the base. Mr Hewitt told the Tribunal that he had to do that some 30 times; he told Dr Altman and Dr Dinnen it was 6 – 8 times.
160. His reaction to the events were his description that the experience was very frightening, because he felt he was not trained for combat, had never discharged the weapons he carried, and did not know if the alarm was activated for training purposes or because of an enemy threat. He has described this reaction of fear to the doctors who examined him, and to the Tribunal, also stating that he was so upset he would go to the latrines and vomit after the event.
161. On consideration of the above we found that it raised an hypothesis linking Mr Hewitt’s depressive episodes with his war service.
162. The next step in Deledio (supra) is then to consider whether there are the appropriate SoPs. The relevant SoP for depressive episodes are Instrument No 58 of 1998 and Instrument No 17 of 2007. Taking into account the principles established in Keeley (supra) and Gorton (supra), we are satisfied that Instrument No 58 of 1998 should be applied in this case.
163. We noted that where an SoP has been determined pursuant to section 196B(2) of the Act, it sets out the factors which must, as a minimum exist before it can said that a reasonable hypothesis has been raised. We must then form the opinion whether the hypothesis raised linking Mr Hewitt’s depressive episodes with his war service is a reasonable one. It will be so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised must thus contain one or more of the factors which the RMA 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.
164. The relevant factors in Instrument No 58 of 1998 follow:
(a) ….
(b) experiencing a severe psychosocial stressor or stressors within the
two years immediately before the clinical onset of depressive
disorder; or
(c) having a clinically significant psychiatric condition within the two
years immediately before the clinical onset of depressive disorder;
or ….
165. The definition of severe psychosocial stressor in Instrument No 58 of 1998 follows:
“severe psychosocial stressor” means an identifiable occurrence that
evokes feelings of substantial distress in an individual, for example, being
shot at, death or serious injury of a close friend or relative, assault
(including sexual assault), severe illness or injury, experiencing a loss
such as divorce or separation, loss of employment, major financial
problems or legal problems;
166. There were no submissions made, and no points raised pointing to Mr Hewitt suffering a severe psychosocial stressor as contemplated in the template in Instrument No 58 of 1998.
167. We considered whether all the material regarding the “stand-to” Mr Hewitt claimed to have experienced raised a reasonable hypothesis linking the claimed condition of depressive episodes to his war service, and constituted a “severe psychosocial stressor” as claimed, which led to the depressive episodes.
168. There is ample case law with regard to what constitutes a “severe stressor” in the terms of the SoP. Woodward (supra) and Stoddart (supra) are important authorities in terms of severe stressors. Relying on those cases, and without fact finding, it would seem that the points raised before us regarding the “stand-to” incidents pointed to by Mr Hewitt where there was no enemy seen, and where he did not leave the camp perimeter, cannot meet the tests for having experienced a “severe psychosocial stressor” in the terms of Instrument No 58 of 1998.
169. Even if Mr Hewitt met the test for a severe psychosocial stressor in terms of Instrument No 58 of 1998, there is no material before us that indicated Mr Hewitt suffered from symptoms that would warrant a conclusion that he suffered depressive episodes in the two years following the events he has described which he found stressful in Nui Dat.
170. Accordingly having reviewed the whole of the material before us we find that none of the minimum factors set out in the SoP is raised by the evidence in this case. It does not raise a reasonable hypothesis linking Mr Hewitt’s depressive episodes with his war service. Therefore the hypothesis is not reasonable, and the application to have depressive episodes found to be war-caused must fail. We do not need to further consider section 120(1).
WHETHER MR HEWITT IS ELIGIBLE FOR PENSION AT THE INTERMEDIATE OR THE SPECIAL RATE
171. We were asked to consider whether Mr Hewitt is eligible for the intermediate rate or special rate pension pursuant to sections 23 and 24 of the Act as he had been refused it by the VRB (N2006/654). Mr Hewitt was under 65 years at the date of his application. The date of effect for Mr Hewitt’s special rate pension, if eligible, would be 1 February 2003, the day after he ceased work for the accountancy firm on 31 January 2003.
172. Section 24 specifies three criteria that a veteran must meet in order to be entitled to the special rate of pension.
“Special rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
…and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
Tests in Section 24(1)(a) of the Act
173. To satisfy the tests in section 24(1)(a)(i) of the Act, requires that the Veteran’s degree of incapacity from war-caused injury or war-caused disease, assessed in accordance with GARP, be a minimum of 70%.
174. Mr Hewitt claimed for increase in his pension in 2001. On 18 February 2002, his disability pension was increased from 40% to 70% of the general rate with effect from 10 September 2001. The VRB affirmed the assessment decisions on 16 May 2006 (T37). This was affirmed in a decision of 5 February 2004. After several adjournments in relation to his entitlement claim, the VRB affirmed the decision of the Repatriation Commission as to assessment, and on 16 May 2006, held that pension at 70% of the general rate be continued. Mr Hewitt appealed that decision of the VRB to this Tribunal.
175. We noted that notwithstanding earlier acceptance of the decision to award pension at 70% of the general rate as mentioned above, Ms McCulloch argued in closing, and in the Respondent’s Further Amended Statement of Facts and Contentions dated 19 June 2007, that based on Dr Lewin’s assessment of July 2003 (T23/116) and Dr Haik’s assessment of October 2006, the requirements of section 24(1)(a)(i) are not met, and that the 70% was in any case incorrectly calculated.
176. In addition, Ms McCulloch argued that based on Dr Haik’s opinion which was that the Applicant suffers from Avoidant Personality Disorder and Dysthymic Disorder, and not GAD or Alcohol Dependence or Alcohol Abuse, or Depression/ depressive episodes, meant that assessment for general rate of pension was nil from 10 October 2006.
177. We noted that the doctors who examined Mr Hewitt gave ratings for his impairment pursuant to Table 4 of the Guide to the Assessment of Rates of Veterans’ Pensions (the Guide). However we can only take account of these if any of the conditions Mr Hewitt suffers, that is, GAD and Alcohol Abuse and depressive episodes, are war-caused. Unfortunately for him, we have been unable to find that they are.
178. The period of assessment is from the date of application to the date of publication of the decision. Mr Hewitt has no accepted war-caused conditions from the date of publication of this decision on 21 December 2007.
179. We have accordingly decided that, on the basis of the impairment points awarded while Mr Hewitt still had the conditions of GAD and Alcohol Dependence or Alcohol Abuse accepted as war-caused, which ceased from the date of our decision, Mr Hewitt should receive pension at 70% of the general rate from 10 September 2001, as previously awarded to him until the date of this decision. We have based our decision on the opinions and reports of:
· Dr Chase, the occupational physician;
· Dr Dinnen who examined Mr Hewitt both in 1999 and 2007;
· Drs Haik and Prior who also gave ratings of 42 and 40 respectively; and
· Dr Altman who is the Applicant’s treating psychiatrist;
· Dr Morris on 7 March 2006, stated that in his opinion Mr Hewitt was unable to undertake remunerative work because of his emotional and behavioural impairment, most significantly because of Alcohol Dependence. He apportioned the inability to work as being due to Alcohol Dependence, 60%, GAD, 10% and Major Depressive Episode, 30%.
· the evidence before us of Mr Hewitt’s illness and increasing difficulties at work which led him to finally resign in January 2003 because he could not cope.
180. From the date of our decision Mr Hewitt’s eligibility for disability pension is zero. He cannot be entitled to a special or intermediate rate of pension unless he has war-caused disabilities.
DECISION
181. Matter N2006/654 – The Tribunal varies the assessment decision of the VRB dated 16 May 2006, and awards pension at 70% of the general rate from 10 September 2001 to the date of this decision, 21 December 2007. As Mr Hewitt no longer has conditions accepted as war-caused from 21 December 2007, he is not entitled to disability pension. Mr Hewitt is not entitled to intermediate or special rate of pension.
182. Matter N2004/1139 - The Tribunal affirms that part of the decision of the VRB dated 27 July 2004 which found that Mr Hewitt does not suffer PTSD with Major Depression. In substitution the Tribunal finds that Mr Hewitt suffers Generalised Anxiety Disorder and Alcohol Abuse with depressive episodes, but finds that these conditions are not war-caused.
I certify that the 182 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member, Dr I Alexander, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 21 & 22 June 2007; 8 & 9 October 2007
Date of Decision 21 December 2007
Counsel for the Applicant Mr N Dawson
Advocate for the Respondent Ms J McCulloch
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