John Schmidt and Repatriation Commission

Case [2015] AATA 229

[2015] AATA  229

Division VETERANS' APPEALS DIVISION

File Number

2013/5424; 5425

Re

John Schmidt

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Ms N Isenberg, Senior Member
Date 17 April 2015
Place Sydney

The decision under review in relation to “anxiety disorder” and “alcohol dependence”:

(a)        is varied and a diagnosis is substituted of “anxiety disorder with co-morbid alcohol abuse”; and

(b)        the decision under review, as varied, is affirmed.

The decision under review in relation to assessment is affirmed.

.........................[sgd]...............................................

Ms N Isenberg, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Entitlements – Anxiety disorder – Alcohol dependence – Whether veteran’s condition was war-caused – Decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 9, 13(1),120, 196B, 120A

Statement of Principles concerning Anxiety Disorder No. 102 of 2014

Statement of Principles concerning alcohol dependence and alcohol abuse No. 1 of 2009

CASES

Repatriation Commission vGorton (2001) 110 FCR 321

Repatriation Commission v Keeley (2000) 98 FCR 108

Fogarty v Repatriation Commission (2003) 37 AAR 363

Repatriation Commission v Cooke (1998) 90 FCR 307

Gerzina v Repatriation Commission [2004] FCAFC 96

Repatriation Commission v Budworth (2001) 116 FCR 200.

Lees v Repatriation Commission (2002) 125 FCR 331

Bull v Repatriation Commission (2001) 66 ALD 271

Hardman v Repatriation Commission (2004) 82 ALD 433

Elliott v Repatriation Commission (2002) 73 ALD 377

Repatriation Commission v Bey (1997) 79 FCR 364

Youngnickel v Repatriation Commission [2004] FCA 1691

Repatriation Commission v Hill (2002) 69 ALD 581

Lees v Repatriation Commission (2002) 125 FCR 331

Re Robertson and Repatriation Commission (1998) 50 ALD 668

Kaluza v Repatriation Commission (2011) 280 ALR 621

REASONS FOR DECISION

Ms N Isenberg, Senior Member

17 April 2015

  1. Mr Schmidt served in the Royal Australian Navy between 6 January 1965 and 9 January 1976.  His “operational service” as defined in the Veterans’ Entitlements Act 1986 (Cth)[1] (“the VE Act”) is as follows:

    (c)22 April 1966 - 18 May 1966 aboard HMAS Sydney;

    (d)25 May 1966 – 11 June 1966 aboard HMAS Sydney; and

    (e)16 March 1971 - 11 October 1971 aboard HMAS Brisbane.

    [1] ss 6 to 6F.

  2. Mr Schmidt also rendered eligible defence service between 7 December 1972 and 9 January 1976, but this aspect of his service was not relevant to his claim.

  3. Mr Schmidt claimed for ‘anxiety disorder’ and ‘alcohol dependence’ and contended that he suffers those conditions because of his operational service. 

  4. He also sought an increase in his pension to the Special or Intermediate Rate but conceded that any increase in his pension was dependent upon the success of his application for review of entitlement.   

  5. Mr Schmidt seeks review of the decisions of the Repatriation Commission dated 4 April 2013 (entitlement) and 11 October 2012 (assessment), both of which were affirmed by the Veterans’ Review Board (“the VRB”) on 18 September 2013.   

  6. The Applicant has a number of conditions accepted as related to service: Lumbar Spondylosis, Retrolisthesis L5-S1, Malignant Neoplasm of the Prostate, Erectile Dysfunction, Sensorineural Hearing Loss, Non Melanotic Malignant Neoplasm…

Continue reading John Schmidt and Repatriation Commission

Sign in free to access the full text

Details
AGLC
John Schmidt and Repatriation Commission [2015] AATA 229
Case
[2015] AATA 229
Decision Date

CaseChat Overview and Summary

The case involves John Schmidt, who sought review of a decision by the Repatriation Commission regarding his entitlements as a veteran. The primary issues were whether Schmidt suffers from anxiety disorder and alcohol dependence, and if these conditions were caused by his military service. The matter was heard and determined by the Administrative Appeals Tribunal. The legal issues at the heart of this case revolved around the existence of the claimed conditions and whether they were attributable to Schmidt's war service. The Tribunal had to determine if Schmidt indeed suffered from anxiety disorder and alcohol dependence, and if these conditions were linked to his experiences during his military service. This required a careful examination of medical evidence and the testimonies of Schmidt and several medical experts.

The Tribunal considered the evidence provided, including statements from Schmidt, reports from psychiatrists and occupational physicians, and other relevant documents. Both Dr Dinnen and Dr Vickery agreed that Schmidt suffers from anxiety disorder but differed on the causation aspect. Dr Dinnen believed the condition was linked to Schmidt's experiences during his service, while Dr Vickery was more inclined to consider it a constitutional condition that could have been exacerbated by service-related stress. The Tribunal weighed these opinions and the overall evidence to conclude that Schmidt does suffer from anxiety disorder, albeit with co-morbid alcohol abuse. The Tribunal found that the anxiety disorder was "environmentally triggered" by Schmidt's service, particularly his experiences in Vietnam and subsequent work-related stress.

The Tribunal affirmed the original decision regarding Schmidt's pension assessment, finding no basis for an increase. However, it varied the decision on the diagnosis, substituting it with "anxiety disorder with co-morbid alcohol abuse." This variation was upheld upon review. The Tribunal's decision underscored the importance of factual determinations regarding the existence and causation of medical conditions in veterans' entitlement cases. The Tribunal's careful consideration of the medical evidence and expert opinions led to a nuanced understanding of Schmidt's conditions and their relationship to his military service.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Relevantly, “category 2 stressor” is defined as:one of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry: ...(c) having concerns in the work ... environment including ... perceived lack of social support within the work ... environment, perceived lack of control over tasks performed and stressful work loads, ... ...EVIDENCE I had before me the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Act 1975. The following documents were tendered at the hearing:(a)Statement of the applicant, John Schmidt dated 9 December 2014(b)Medical Report of Dr Dinnen dated 7 April 2014(c)Medical Report of Dr Dinnen dated 2 September 2014(d)Medical Report of Dr Burns dated 11 March 2014(e)Medical Report of Dr Vickery dated 2 June 2014(f)Supplementary Report of Dr Vickery dated 18 December 2014(g)Claim for Service Pension Documents(h)Medical Report of Dr Chase dated 10 June 2014(i)HMAS Sydney Reports dated 4 July 1966(j)Killarney Vale Medical Practice Clinical Notes(k)VRB Transcript dated 18 September 2014(l)Extracts from the publication “Up Top” Mr Schmidt gave evidence. He had previously provided statements in support of his claim dated 2 September 2008 and 9 December 2014. Evidence was also given by consultant psychiatrists, Drs Dinnen and Vickery, concurrently, and occupational physicians, Drs Burns and Chase, also concurrently. All the doctors had provided reports which were in evidence. CONSIDERATION: ENTITLEMENT Does Mr Schmidt suffer from the claimed conditions? Only after I determine if the veteran is suffering from a particular condition does the question arise as to whether the particular condition is war-caused: Fogarty v Repatriation Commission (2003) 37 AAR 363. The issue whether a disease exists, which is a question of fact, is to be decided to the reasonable satisfaction of the Tribunal: Repatriation Commission v Cooke (1998) 90 FCR 307; Gerzina v Repatriation Commission [2004] FCAFC 96, [5]; Repatriation Commission v Budworth (2001) 116 FCR 200.Anxiety disorder At the outset of their evidence Dr Dinnen and Dr Vickery agreed that the applicant suffers anxiety disorder, but disagreed as to “causation”. Dr Dinnen was unconcerned about the veteran having described a happy lifestyle before his diagnosis of prostate cancer in 2007, noting that many people with anxiety disorder can lead happy lifestyles. Dr Vickery however, when that information was brought to his attention, then had serious reservations about the diagnosis of anxiety disorder, noting that he had largely relied on the veteran’s self-reporting. However, he did not completely resile from his diagnosis. In that regard, Dr Dinnen had referred, in the history recorded in his report of 7 April 2014, to the applicant describing events which occurred during his service which he said caused him to be anxious: when he was only a young seaman in Vietnamese waters he experienced scare charges; and his sentry duty caused him to be very afraid. He started to drink then, and those worries and anxieties then increased when he served on the gunline in HMAS Brisbane.

Decision

Reasons for decision

Because the veteran’s application for review in relation to assessment was conceded to be dependent upon the success of his entitlement application for review, and having reviewed the evidence of Drs Chase and Burns who, effectively, were also of that view, I find there to be no basis for an increase in the veteran’s pension. Accordingly the decision under review in relation to assessment is affirmed. DECISION The decision under review in relation to “anxiety disorder” and “alcohol dependence”:(m)is varied and a diagnosis is substituted of “anxiety disorder with co-morbid alcohol abuse”; and(n)the decision under review, as varied, is affirmed. The decision under review in relation to assessment is affirmed.

Ratio Decidendi

Legal Principle Established

Mr Schmidt gave evidence. He had previously provided statements in support of his claim dated 2 September 2008 and 9 December 2014. Evidence was also given by consultant psychiatrists, Drs Dinnen and Vickery, concurrently, and occupational physicians, Drs Burns and Chase, also concurrently. All the doctors had provided reports which were in evidence. CONSIDERATION: ENTITLEMENT Does Mr Schmidt suffer from the claimed conditions? Only after I determine if the veteran is suffering from a particular condition does the question arise as to whether the particular condition is war-caused: Fogarty v Repatriation Commission (2003) 37 AAR 363. The issue whether a disease exists, which is a question of fact, is to be decided to the reasonable satisfaction of the Tribunal: Repatriation Commission v Cooke (1998) 90 FCR 307; Gerzina v Repatriation Commission [2004] FCAFC 96, [5]; Repatriation Commission v Budworth (2001) 116 FCR 200.Anxiety disorder At the outset of their evidence Dr Dinnen and Dr Vickery agreed that the applicant suffers anxiety disorder, but disagreed as to “causation”. Dr Dinnen was unconcerned about the veteran having described a happy lifestyle before his diagnosis of prostate cancer in 2007, noting that many people with anxiety disorder can lead happy lifestyles. Dr Vickery however, when that information was brought to his attention, then had serious reservations about the diagnosis of anxiety disorder, noting that he had largely relied on the veteran’s self-reporting. However, he did not completely resile from his diagnosis. In that regard, Dr Dinnen had referred, in the history recorded in his report of 7 April 2014, to the applicant describing events which occurred during his service which he said caused him to be anxious: when he was only a young seaman in Vietnamese waters he experienced scare charges; and his sentry duty caused him to be very afraid. He started to drink then, and those worries and anxieties then increased when he served on the gunline in HMAS Brisbane. At the hearing Dr Dinnen was informed that the applicant now solely contended that his condition was because of concerns in the work environment including perceived lack of social support within the work environment, and perceived lack of control over tasks performed and stressful work loads. The doctor maintained his view but noted that he did not obtain that history from the applicant, although he had referred to the cumulative effects of his service in Vietnam indicating “a perceived lack of lack of control over tasks performed and stressful work loads” i.e. a category 2 stressor. He continued in his evidence to particularly refer to the events about which he had taken a history. Dr Dinnen described the veteran’s condition as “environmentally triggered anxiety disorder”. Dr Vickery considered that generalised anxiety disorder is a constitutional condition which usually begins in young adult life and extends throughout the person's life. He said in his evidence that the condition could have been exacerbated at the time of the veteran’s service, as would be expected, and then it would be expected to continue in a somewhat fluctuating course throughout most of his life, which it has. However, he rejected the concept of ‘triggering events’. He described the condition as:... about magnifying small worries into huge big worries, about catastrophising normal everyday concerns into some dramatic outcome