Karrasch and Military Rehabilitation and Compensation Commission (Veterans' entitlements)

Karrasch and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2021] AATA 1999 (30 June 2021)
Division:VETERANS' APPEALS DIVISION
File Number:2020/1881
Re:Paul Karrasch
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:30 June 2021
Place:Brisbane

The decision under review is affirmed.
.......[SGD].......................
Member D Mitchell
CATCHWORDS
VETERANS’ AFFAIRS – claim for compensation - anxiety and depression – erectile dysfunction - related to military service - date of onset – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)
REASONS FOR DECISION
Member D Mitchell
30 June 2021
INTRODUCTION

Mr Paul Karrasch (the Applicant) is seeking review of a reconsideration decision made by the Respondent on 26 March 2020.[1]
[1] Exhibit 1, T Documents, T2, pages 3-11, Application for Review.
The reviewable decision affirmed a determination[2] that the Respondent was not liable under section 14 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act1988 (Cth) (the DRC Act) for the Applicant’s claimed condition of ‘chronic features of anxiety and depression and erectile dysfunction’ (claimed conditions).[3]
[2] Exhibit 1, T Documents, T11, pages 38-43, Determination.
[3] Exhibit 1, T Documents, T16, pages 50-53, Reviewable Decision.
BACKGROUND
The Applicant served in the National Service from 28 January 1970 to 17 March 1970, approximately 49 days.[4]
[4] Exhibit 1, T Documents, T19, pages 59-60, Records of Service.
Throughout the Applicant’s service personnel records, he records his only next of kin and dependent to be his then wife Mrs Linda Karrasch.[5]
[5] Exhibit 1, T Documents, T19, pages 58-129, Personnel Records.
In the Applicant’s pre-enlistment medical examination dated 29 September 1969 it was recorded that the Applicant:[6]
·Had polio aged two with no defects.
·Had never had frequent severe depression, mental illness – nervous breakdown.
·Had, had two black-outs three years ago, with nature unknown.
[6] Exhibit 1, T Documents, T19, pages 126-127, Service Personnel Records.
The Applicant saw Dr John Lorang, orthopaedic surgeon on 9 February 1970 who recorded that:[7]
Poliomyelitis at the age of two affecting both legs. In patient at Brisbane General Hospital for 18 months. Wore callipers on both legs after discharge for about four months.
Have attended own doctor (Dr James McCoy – Roma Queensland) regularly since then. Last visit for left leg was August 1969. Right leg causes trouble all the time. Pain occurs from the region of the right hip going down.
……
Opinion: There is some weakness involving most of the left leg, some weakness around the ankle joint. In my opinion he is not suited to do active training of the style required by the army. He is not fit to be a front line member of an infantry battalion.
……
[7] Exhibit 1, T Documents, T20, pages 140-141, Service Medical Records.
Following this the Australian Defence Forces Medical Board made a decision to discharge the Applicant from service on the basis that his pre-existing problems with his left leg, due to polio, rendered him “Below Medical Standards for National Service”.[8]
[8] Exhibit 1, T Documents, T20, pages 130-133, Service Medical Records.
The Applicant was medically discharged on 17 March 1970.[9]
[9] Exhibit 1, T Documents, T19, pages 59-64, Service Personnel Records.
The Applicant lodged a claim for compensation form dated 9 May 2019[10] in relation to chronic features of anxiety and depression with date of onset being 1971 and erectile dysfunction with date of onset being 1978. The Applicant claimed that these conditions were a result of his National Service.[11]
[10] Exhibit 1, T Documents, T8, pages 22-31, Claim for Compensation.
[11] Exhibit 1, T Documents, T8, pages 24-25, Claim for Compensation.
In a letter dated 13 July 2019, Dr Anand Choudhary, Psychiatrist opined that he continued “to believe that ED medications should be added to his [the Applicant’s] DVA card, as his depression and ED are linked to his service”.[12]
[12] Exhibit 1, T Documents, T9, page 32, Report of Dr Choudhary.
On 18 July 2019, the Respondent sought a report from Dr Choudhary in relation to the Applicant’s claimed conditions.[13]
[13] Exhibit 1, T Documents, T10, page 33, Request for Report to Dr Choudhary.
On 26 August 2019, the Respondent made a determination refusing liability for the Applicant’s claimed conditions.[14]
[14] Exhibit 1, T Documents, T11, pages 38-43, Determination.
The Applicant sought review of that decision providing the following reasons:[15]
Erectile Dysfunction and Chronic Features of Anxiety and Depression are caused are (sic) linked to my military service I have suffered these conditions since the seventy I was medically discharged after having blackouts after discharge I spent time in the mental at Brisbane hospital while I was in the service, my then wife was seeing other men. I feel if I had not been put in the army this would not have happened I have not seen my 2 children for 48 ½ years have tried for years to find them to no avail Dr Choudhary believes this is all related to my service. While waiting for this decision I was not told I was intilted (sic) to PAMT treatment till yesterday 26/08/2019
[15] Exhibit 1, T Documents, T12, pages 44-45, Request for Internal Review.
The Applicant sought to obtain his medical records from the Royal Brisbane & Women’s Hospital[16] however, was advised that his last recorded date of attendance at the hospital was prior to 2 February 2004 and that his records had been destroyed.[17]
[16] Exhibit 1, T Documents, T14, page 48, Email from Applicant.
[17] Exhibit 1, T Documents, T15, page 49, Letter from Royal Brisbane & Women’s Hospital.
An undated medical report by Dr Choudhary (which was subsequently referred to in the reviewable decision) was provided outlining that the first time he had seen the Applicant was 9 March 2019.[18] Relevant extracts from that report include:[19]
He says that he never wanted to be in the Army, but had to because of his parents. … He got out of the Army after two years. During these two years, he alleges that his wife started having extra marital affairs. Upon his return, he and his wife separated. [The Applicant] went through a custody battle to have access to his           1 & 1/2 -year-old son and few months old daughter.
I note that he did not have any psychiatric symptoms prior to the service and developed a protracted persistent anxiety and depressive illness along with erectile dysfunction which he developed during his service and persisted afterwards.
…
Overall, he presents with chronic features of anxiety and depression and it is likely that his erectile dysfunction is related to his mental illness.
…
Both his conditions has (sic)their onset related to his period of service when he was 22-23 years of age. I believe that the service as well as the psychosocial circumstances he faced at the time contributed to the onset of both of these conditions which have persisted up until now.
…
Apart from the referring correspondence form Dr Ho - treating GP, I did not receive any other corroborating evidence.
[18]    Exhibit 1, T Documents, T17, pages 54-56, Report of Dr Choudhary.
[19]    Exhibit 1, T Documents, T17, pages 54-56, Report of Dr Choudhary.
On 26 March 2020, the Respondent affirmed the determination to refuse liability for the claimed conditions.[20]
[20] Exhibit 1, T Documents, T16, pages 50-53, Reviewable Decision.
The Applicant sought review of the matter by this Tribunal by way of an application dated 26 March 2020.[21]
[21] Exhibit 1, T Documents, T2, pages 3-11, Application for Review.
Further medical evidence was obtained via summons and the Applicant was referred by the Respondent for an Independent Medical Examination with Dr Frank Varghese. The Respondent provided the following summary of the key medical and other evidence before the Tribunal:[22]
[22] Exhibit 2, Joint Hearing Bundle, R3, pages 42-43, Respondent’s Statement of Issues, Facts and Contentions, paragraphs 3.6-3.9.
In a report dated 27 May 2015 to Dr Margaret Ho (General Practitioner) Dr Reynolds made the following comments:
(a) The Applicant has had erectile dysfunction since 2006;
(b)The Applicant had a TURP (TURP is a transurethral resection of the prostrate) at the Redcliffe Hospital. He has variable voiding symptoms since then.
(c)The Applicant’s erectile dysfunction is most likely due to small vessel disease, given his heart history and also the fact that he has risk factors for atherosclerosis including high blood pressure, cholesterol, diabetes and being an ex-smoker.
The Applicant first reported feeling depressed on or around August 2018. The evidence suggests that the Applicant then sought treatment from Dr Steve Brimstone until he was referred to Dr Anand Choudhary (treating Psychiatrist) in March 2019.
On 9 March 2019, Dr Choudhary reported that the Applicant presents with chronic features of anxiety and depression and that it is likely that his erectile dysfunction is related to his mental illness (see T6, pg. 19). Dr Choudhary subsequently provided reports in support of the Applicant including an undated report (see T17, pg. 54) and a report dated 13 July 2019 (see T9, pg. 32)].
On 15 October 2020 the Applicant was referred by the Respondent for an Independent Medical Examination with Dr Varghese, Psychiatrist. On 20 November 2020 Dr Varghese provided a report in which he stated the following:
(a)Dr Varghese commented that it was unlikely that the Applicant could be suffering from any psychiatric condition brought about by his service.
(b)Dr Varghese assessed the Applicant’s current conditions as dysthymia (PDD), depression/anxiety secondary to medical condition and adjustment disorder as a reaction to sexual dysfunction.
(c)The Applicant did not report any poor treatment at Singleton and he did not report having experienced any traumatic events.
(d)The breakup of the Applicant’s marriage and loss of his children cannot meaningfully be attributed to his military service of 49 days as against the extraordinary and unconscionable behaviour of his ex-wife.
(e)The Applicant suffered a significant emotional decompensation in response to the loss of his children such that he began to abuse alcohol and there was an admission to a psychiatric facility some months later.
(f)The Applicant’s psychiatric problems are not related to his period of military service. Dr Varghese added that he did not believe the Applicant’s current condition has been contributed to by his period of military service.
(g)The Applicant’s sexual dysfunction is not related to his military service.
[Footnotes omitted]
On 15 June 2021, a Hearing was conducted in relation to this matter. At Hearing the Applicant was self-represented, appeared by Microsoft Teams and gave evidence under affirmation.
ISSUES
The primary issue before the Tribunal is whether the Respondent is liable to pay compensation under section 14 of the DRC Act for the Applicant’s claimed conditions.
In considering this issue, the Tribunal must consider:
(a)Whether the Applicant suffered from a disease;
(b)If so, what was the date of onset for this condition? Noting that relevantly:
(i)If after 13 April 2007, the test is whether the condition was contributed to, to a significant degree by the Applicant’s military service.
(ii)If after 1 December 1988, but before 13 April 2017, whether the condition was contributed to, to a material degree, by the Applicant’s military service.
(iii)If prior to 1 December 1988, whether that condition as contributed to by the Applicant’s military service.
(c)Depending on the date of onset for the condition, whether the Applicant suffered from a disease (as defined) for the purposes of section 5A(1)(a) of the DRC Act?
THE HEARING
The Applicant
At Hearing the Applicant outlined that the purpose of his application was that he had received a DVA White Card that provided for no liability mental health care and had sought to have his medication for erectile dysfunction covered as part of that health care. After completing a number of different DVA forms and having been told on each occasion that the medication was not covered, he subsequently made an application to have the conditions of chronic features of anxiety and depression and erectile dysfunction accepted under the DRC Act.
The Applicant told the Tribunal that he believed that his anxiety and panic attacks started when he was in Singleton where he had trouble sleeping and experienced sweaty palms and the shakes. The Applicant said he believes that his psychological conditions are the cause of his erectile dysfunction condition and relies on the report of Dr Choudhary in that regard.
The Applicant told the Tribunal that he was waiting in line at Singleton to see the medic about his panic attacks when he blacked out. He said the next thing he knew he was waking up on a stretcher. He said he did not get to see the medic about his panic attacks. The Applicant said he returned to his barracks and a week later was sent to see a doctor. He said he was not told why he was to attend the doctor and thought the consultation was to discuss his panic attacks however, the doctor performed a physical examination. The Applicant said he mentioned his panic attacks to the doctor, but the doctor did not say anything about it. The Applicant said two days later he was taken out of barracks and told he was to be discharged.
The Applicant told the Tribunal that on the day of discharge there were two other people being discharged and that after the formalities he was asked to stay behind and was advised that he was being sent home as his wife had been seeing other men. The Applicant told the Tribunal that it was arranged for him to be given an advance of $10 so that he could fly home.
The Applicant told the Tribunal that he only had the single blackout during his period of service. When asked if he thought the blackout was a result of a panic attack he said he did not think so but was not sure, he said that it was hot in Singleton and he was waiting in line.
When asked by the Tribunal whether he had, had blackouts prior to his period of service, the Applicant said no. When taken to his pre-enlistment medical examination record[23] where it was listed that he had two black-outs three years earlier and asked if he remembered what was being referred to, said he did not remember what that is about, but that in those days he may have been out partying with his girlfriend and lacked sleep.
[23] Exhibit 1, T Documents, T19 page 121, Service Personnel Records.
The Applicant told the Tribunal that he first sought treatment for his panic attacks and mental health after his separation from his wife and children from a doctor in Redcliffe who gave him an injection to calm him down. He said he admitted himself into the mental health facility of the Royal Brisbane Hospital (RBH) in 1972 and was there for about a week. The Applicant told the Tribunal he had contacted RBH to seek records however, was advised that the records had been destroyed and that the only records available could confirm that he had been a patient at some time prior to 2004. The Applicant told the Tribunal that that the only other time he had been to the RBH was when he was born.
When asked whether he had received any other treatment for his mental health, the Applicant told the Tribunal he saw his general practitioner, Dr O’Connor in the 1980s. The Applicant said he had never seen a psychologist or psychiatrist until it was suggested to him by RSL Representative and DVA. He said he just suffered on his own.
The Applicant said Dr O’Connor wanted to give him Valium, but he was hesitant to take it as it is addictive. He said he had not talked to other general practitioners about his panic attacks and mental health. The Applicant said it was hard to talk to Dr Ho about his mental health or erectile dysfunction.
When asked about the frequency of his panic attacks and triggers the Applicant told the Tribunal that they had been happening since 1970. He said his heart races, he gets sweaty, feels like he is having a heart attack. He needs to sit down until it passes or if he is driving he needs to pull over. The Applicant said that his panic attacks had been regular, at least once a fortnight since 1970, with sometimes slightly longer times between episodes. The Applicant said he was not sure what the trigger was for his panic attacks however, he is afraid of dying.
The Applicant said he would not have seen a psychiatrist if he had not been sent to see Dr Choudhary, however that Dr Choudhary has helped him immensely.
The Applicant told the Tribunal that his erectile dysfunction started in the early 1980s and he put up with it until around 1989 when Dr O’Connor sent him to see Dr Yaxley who gave him injections at the time. The Applicant said he did not talk to his general practitioners about his erectile dysfunction, he instead asked to see a urologist and discussed it with them. He said his general practitioner did not prescribe injections or medication, only the specialists did.
The Applicant confirmed that he had other issues with his water works, which were investigated and operated on at different times.
On cross-examination, the Applicant:
·Confirmed that he had been having fortnightly panic attacks since 1970 and was admitted to the RBH mental health facility in 1972 and that he understood that during that admission he saw mental health related doctors.
·Agreed that 20 years later when the induction form to the Brisbane Correctional Centre was being completed, he had remarried and in total had 4 children.
·Confirmed that he had only indicated that he had two children on that form as he had not seen his other two children since 1970 and the form was talking about his current family.
·When taken to the Brisbane Correctional Centre Induction Interview document and the question that asked “Have you ever been treated by a psychiatrist or psychologist for emotional or mental problems” to which he had indicated no; said he had not seen a psychiatrist, he had only seen them at the hospital.
·When put to him that it raises questions as to the accuracy as to whether he had seen a psychiatrist at the hospital, as he had no reason to lie, said he had no reason to lie, they asked him questions and he answered them, when you are sent to prison you do not remember everything.
·When put to him that the documents before the Tribunal reveal that the first documented time he sought help with regards to his mental health was 2018, said he agreed other than the RBH and he agreed that the RBH letter did not reveal what treatment he had received.
·When taken to his request for an Application for Review or Appeal to the Veterans’ Review Board (found at T12) where he had referenced being discharged after having blackouts, he was asked what he thought about the medical records showing that the reason he was discharged was for physical reasons, said “yes that is what they say”.
·When asked if his case was that his mental health condition was connected to his service as but for his service the things in his personal life would not have happened, said yes in part. He said that the panic attacks started in the army, he was told that his wife was playing around and if he was not put in the army that would not have happened.
·Agreed that there was no record of that conversation.
·Said he married his first wife in June 1969, they had not been together for 12 months when they got married.
·When asked why on his pre-enlistment form dated September 1969, he recorded his wife as living in Kipparing and not in Roma with him, said that when he met his then-wife she was living in Kipparing and he was living in Roma. He said he went to Kipparing to marry her and she moved back to Roma with him.
·When asked why there was no mention on the pre-enlistment form of dependent children, said his son was born in early 1970 and his daughter was born after that. When asked if he was sure, he said yes.
·When put to him that the reason that in all of the other forms in the lead up to and during his enlistment there was no mention of children was because they were not born until after he was discharged, said no, his son was born on 15 January 1970 and his daughter was born on 4 May 1972.
·When put to him that this raises more questions as he had said that he had a child who was 1 ½ and another who was 6 months old when he was taken into service, said that was not the case.
·When put to him that his relationship with his first wife did not end just after discharge, said, no he had never said that, it continued for about 12 months.
·Agreed they decided to have a second child.
·When put to him that his wife left him in 1975 after his grievous bodily harm charge, said no he was not with her then.
·When taken to the pre-enlistment form and asked why it is stated that he had polio when aged two but had no resulting defects, said that was because he does not have any.
·When asked how come then after two weeks into his service he had issues with his lower legs, said he never had any problems with his legs in the army and never saw anyone about it.
·When taken to T20, (page 140 of the T Documents) the doctors assessment dated 9 February 1970 that stated polio affecting left leg was noted and last visit to the doctor for the issue was August 1969, said he was not sure who wrote that as he did not see Dr McCoy until 1970 after he got married.
·When put to him that was the history he told the doctor, said he never saw Dr McCoy for his legs.
·When put to him that it shows he did see someone regarding his lower leg, said not at Singleton, only when they did the examination. He said he did not recall seeing anyone other than at discharge.
·When taken to the report where the doctor formed the opinion that he was not suited to active training linked to left lower leg, said he supposes that is what is written but that is not what he went to the see the doctor about.
·Confirmed it was his signature on the final Medical Board Report dated 10 February 1970 and confirmed:
oThat nowhere on the form did it mention his disabilities or conditions included shaking, sweaty palms or blackouts.
oThe reference to him having treatment at the RBH 18 years ago referred to when he had polio.
oThe Members statement was consistent with the earlier doctor’s opinion.
oThe question diagnosis of any other disabilities present was answered “Nil”.
·When asked if he accepts that he was discharged for medical reasons associated with his lower leg, said he knows that is what it says. He said they did not mention seeing the doctor about panic attacks.
·When taken to his record of service at T19, (page 59 of the T Documents) where it notes his ex-wife as his next of kin and does not record any children of that marriage, said he does not know why it is blank.
·When taken to his personal particulars booklet found at T19 (pages 72-109 of the T Documents) and specifically at page 75 where no children are recorded, said something is wrong.
·When asked if he would have told anyone about his children, said not unless he had to.
·When asked why Dr Choudhary had said in his report that he was enlisted for 2 years of service and that he alleged that his wife cheated during his service and that they separated straight after discharge, said that is not correct, it was 12 months after discharge.
·When put to him that only 13 days into his 49 days of service that his leg issue was picked up and he was found not fit for service, said that he was not told until discharge.
·When put to him that the Medical Board evaluation occurred in February 1970 and that he had a single blackout when lining up to see the medic which was not connected to mental health, said that was not what he went to see them about.
·Confirmed he was not harassed during his service.
·When put to him that he had told Dr Varghese when asked if he had applied for a medical discharge, that he had not but had tried to get out of service because he had a 1 year old son and a daughter in arms, that, that was inconsistent with his earlier evidence to the Tribunal said he married early and that he never told Dr Varghese he had two children at that time.
·When put to him that the psychiatrists formed history based on what he tells them, said that he separated in 1971 and at that stage had two children.
·When put to him he had earlier told the Tribunal that his daughter was born in 1972, said around that time.
·Said his marriage ended at the end of 1972.
·When put to him that the first time the documents before the Tribunal mention children with his first wife was not until 2018 after DVA said to put in a claim, said he has two boys, he has not seen the other two for 50 years and while he thinks about them they are not with him.
·When put to him that the first time the documents before the Tribunal mention treatment being sought for mental health is in 2018 and for erectile dysfunction is 2015, said no he saw Dr Yaxley long before that.
Dr Varghese

At Hearing, Dr Varghese appeared by Microsoft Teams and gave evidence under affirmation. Dr Varghese:
·Confirmed his name and qualifications.
·Confirmed he had assessed the Applicant on 20 October 2020 and had produced a report dated 20 November 2020 of which the opinions contained therein remained his opinion. Other than some typographical errors which do not alter anything.
·Said that in situations where he uses quotations (being “and”) in his report he is directly quoting what the Applicant said to him.
·Said that the history provided in the report is what was given to him by the Applicant.
·Confirmed that the history given to him by the Applicant was that at the time of enlistment he was married with two children and had to send money home.
·When told that at Hearing the Applicant’s timeline of events changed so that when he enlisted he had a son born in 1970 and then post discharge his marriage continued and they had a daughter in May 1972 and the marriage broke down shortly after and asked if that timeline was accepted if it would change his opinion, said that is a very different account to that which was given to him and what it means is that the position that the marriage broke down because of the Applicant’s service becomes more untenable. It does not however, change the impacts of the marriage breakdown.
·Agreed that based on the material provided to him and the Applicant’s reporting that the first declaration of the Applicant’s mental health condition was his admission to RBH. However, the first referral for treatment was in 2018.
·In light of the new evidence from the Applicant, when asked to provide further information in relation to the opinion he expressed in his report that: [24]
(xiv) [The Applicant’s] sexual dysfunction is not related to his military service I note that following his release from his first period of imprisonment he was able to marry and have children the sexual dysfunction is a later development and most likely related to organic factors as discussed in the specialist report.
said that after the Applicant left the army, he fathered three children, so clearly there was no sexual dysfunction. The sexual dysfunction developed for organic factors. Erectile dysfunction is inevitable for anyone who has TURP. The Applicant also had other conditions which would contribute to the condition including diabetes, a history of smoking and low testosterone.
[24] Exhibit 2, Joint Hearing Bundle, R2, pages 17-40, Report of Dr Frank Varghese, page 37.
The Applicant declined the opportunity to cross-examine Dr Varghese.
Respondent
The Respondent submitted that it relied on the Statement of Issues, Facts, and Contentions as filed on 8 March 2021 together with contentions made at Hearing. The Respondent contended at hearing that the Applicant’s evidence should not be accepted as reliable for the following five reasons:
(a)The Applicant provided no explanation for the inconsistency of events/timeline of his relationship with his first wife or children. The attempt to link his marriage breakdown to his service was exaggerated as he did not have two children at the time of enlistment and his marriage continued for a period after his service.
(b)In the written material before the Tribunal all references were to the Applicant having attended the RBH Mental Health Unit in 1971, at Hearing the Applicant’s oral evidence was that he attended in 1972. The Applicant provided inconsistent evidence that he had otherwise only attended the RBH at birth, however the medical records show he also attended in relation to his polio condition.
(c)In relation to blackouts prior to service, the Applicant gave evidence that he had not had any and then when taken to the records was unable to provide any real explanation.
(d)The Applicant’s recollection for what medical treatment was sought for was inconsistent.
(e)The reasons provided by the Applicant for why he was discharged are at odds with the documented reasons.
The Respondent further contended that the Tribunal should accept the opinion of Dr Varghese over that provided by Dr Choudhary on the basis that Dr Varghese had access to all records and reports and provided a comprehensive analysis of the situation. The Respondent contended that there is nothing that brings Dr Varghese’s opinion into dispute. The Responded submitted that Dr Choudhary was given an inaccurate history of events and to the extent that he links the Applicant’s claimed conditions to service he provides no particularisation as to how he formed that view.
The Respondent contended that the Tribunal should affirm the reviewable decision as:
(a)Dr Varghese’s opinion in relation to the Applicant’s erectile dysfunction is consistent with regards to causation with Dr Reynolds, who as a urologist is properly qualified to provide such an opinion; and
(b)regardless of:
(i)whether it is accepted that the 1972 admission to the RBH was the first time treatment was sought for the Applicant’s mental health conditions (which is not conceded) and the test is did the Applicant’s military service have a contribution to the condition; or
(ii)whether it is accepted that the 2018 referral by Dr Ho was the first time treatment was sought and the test is did the Applicant’s military service have a significant contribution to the condition;
the outcome is the same. The Respondent contended there was no reliable evidence to establish any contribution of the Applicant’s military service to his claimed conditions. Especially given the new timeline and circumstances of the Applicant’s personal relationship events and the connection with his mental health condition have become even more remote, given the Applicant’s service ended in March 1970 and he and his wife went on to have another child before the breakdown of their marriage sometime later.
CONSIDERATION
The Respondent accepts that the Applicant suffers from anxiety and depression and erectile dysfunction and contended that that they are a disease for the purpose of identifying the correct liability tests under the DRC Act.[25]
[25] Exhibit 2, Joint Hearing Bundle, R3, page 43, Respondent’s Statement of Issues, Facts and Contentions, paragraphs 4.1-4.2.
Based on the medical evidence before it, in particular the opinions of Dr Choudhary and Dr Varghese the Tribunal finds that the Applicant suffers from anxiety, depression and erectile dysfunction which for the purposes of the DRC Act fall within the meaning of disease. There is no evidence before the Tribunal that the Applicant’s claimed conditions were a result of one single event or point of injury.
As such, the date(s) of onset of the claimed conditions is relevant to establish which liability test applies to the present application. Consideration must be given to the date of onset of the conditions. Section 7 of the DRC Act provides provisions relating to diseases and specifically provides at section 7(4):
(4)       For the purposes of this Act, an employee shall be taken to have sustained          an injury, being a disease, or an aggravation of a disease, on the day when:
(a)     the employee first sought medical treatment for the disease, or         aggravation; or
(b)     the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of them    employee; whichever happens first.
After the Hearing the Tribunal was left with a distinctly different sequence of events as they related to the Applicant’s military service and life thereafter to that initially gleaned from the written material. On review of the written material, the sense was that the Applicant had made a link between the incident at Singleton where he blacked out and his anxiety; the Applicant had two children at the time of enlistment and that the Applicant’s marriage broke down in close proximity to his discharge. At the Hearing, based on the Applicant’s oral evidence, this position changed.
At Hearing what was clear was that the Applicant is a poor historian. On a number of occasions, the Applicant looked to step back from having provided the history outlined by different medical practitioners and responses provided in medical or service records.
While the Tribunal accepts that the Applicant was married at the time of enlistment and that, that marriage went on to bear two children and later breakdown, the actual timing of those events is not clear. What became clear was that the Applicant’s marriage did not break down immediately upon his return from service and in fact continued for more than a year afterwards.
The crux of the Applicant’s argument is that he first experienced anxiety during his period of enlistment and that he told the doctor that in February 1970, during what ended up being the medical appointment that led to the recommendation for medical discharge however, for a reason unknown to him this was not noted by or addressed by the doctor. As such the Applicant contends that his anxiety and depression conditions are a result of his military service. Further the Applicant sought to rely on the opinion of Dr Choudhary that his erectile dysfunction was a result of his mental health conditions and was therefore also related to his military service. The Applicant contended that he first sought treatment for his panic attacks during his enlistment in 1970 and for his erectile dysfunction in around 1989.
The Tribunal finds the Applicant’s version of events in relation to him seeking treatment for his panic attacks whilst enlisted to be unreliable. To start with it appeared as though the Applicant was saying he saw the medic in relation to his panic attacks. However, no entry was made in his record, then he said he did not get to see the medic because he blacked out. Further, there is no corroborating evidence that the Applicant then went on to tell the doctor about this issue during the subsequent medical examination.
While the Applicant may have sought treatment from the RBH possibly in 1972 for a mental health condition, there is no supporting evidence of that admission, the nature of the admission or the treatment.
The Tribunal notes that based on the documentary evidence before it, the first corroborated reference where the Applicant sought treatment in relation to his mental health occurred on 23 August 2018 when he sought a referral from Dr Ho to see Dr Shim Majumdar (psychiatrist).[26]
[26] Exhibit 2, Joint Hearing Bundle, R7, pages 107-108, Records of Dr Margaret Ho.
Consequently, given the contradictory nature of the evidence provided by the Applicant, the documentary evidence before it, and the absence of any medical evidence that the anxiety, depression and erectile dysfunction conditions resulted in an incapacity for work or impairment, the Tribunal finds that on the balance of probabilities, for the purposes of section 7(4) of the DRC Act, the date of onset of the Applicants anxiety and depression conditions was 23 August 2018.
Regardless of when the date of onset is taken to be in relation to the Applicant’s anxiety and depression, the Tribunal finds that there is no corroborating evidence before it that supports that there is any link between the Applicant’s military service and his anxiety and depression conditions. As such regardless of which liability test was to be applied the same outcome would have been reached.
In reaching this finding the Tribunal notes that:
·The Applicant’s period of service was relatively short at 49 days.
·The service medical records and reports of Dr Choudhary and Dr Varghese provide that the Applicant did not have any mental health concerns prior to his service.
·There is no evidence in the service medical records that the Applicant reported any mental health concerns during his period of enlistment. The Applicant’s evidence at Hearing placed a cloud over whether he ever made such a report.
·There are numerous documents well after the Applicant’s service where he indicated that he had not had, nor had treatment for mental health conditions.
·The Applicant’s evidence is that he did not seek any treatment for his anxiety or depression between 1972 and 2018, despite stating he experienced panic attacks on an almost fortnightly basis during that period, which in the Tribunal’s view seems unlikely.
·The evidence before it in relation to the Applicant’s marriage breakdown and estrangement from his children of that marriage provides no certainty in relation to the timing of events. The Tribunal does accept that such events would have had a profound impact upon the Applicant, however, the evidence provided by the Applicant at Hearing provide doubt as to whether his service had any impact upon the situation.
Consequently, the Tribunal finds that the Applicant’s anxiety and depression are not a disease for the purposes of the DRC Act as they were not contributed to by his military service to any degree, be it significant or otherwise. As such compensation is not payable in relation to these conditions pursuant to section14 of the DRC Act.
The Applicant seeks to have his erectile dysfunction condition accepted on the basis that it is secondary to his anxiety and depression conditions. As the Tribunal has found that the Applicant’s anxiety and depression conditions are not compensable conditions, it similarly finds that liability for compensation does not exist for a sequela condition.
For completeness the Tribunal notes that in relation to the Applicant’s erectile dysfunction condition it accepts the evidence of Dr Reynolds and agrees with the opinion of Dr Varghese that this condition is a result of a number of health conditions and resulted well after the Applicant’s service. Consequently, the Tribunal finds that based on the information before it, regardless of the date of onset of the Applicant’s erectile dysfunction or the findings in relation to his anxiety and depression condition, his erectile dysfunction condition was not in any sense related to his military service.
DECISION
Based on the evidence before it, the Tribunal finds that the Applicant’s anxiety, depression and erectile dysfunction conditions were not contributed to, to any degree by his military service.
Accordingly, the decision under review is affirmed.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

...........[SGD]...................................................
Associate
Dated: 30 June 2021

Date of Hearing: 15 June 2021

Applicant: By Microsoft Teams

Counsel for the Respondent:
Mr Matthew Hawker

Solicitors for the Respondent:

Sparke Helmore Solicitors

[2021] AATA 1999

30 June 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Causation

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Date of Hearing:	15 June 2021
Applicant:	By Microsoft Teams
Counsel for the Respondent:	Mr Matthew Hawker
Solicitors for the Respondent:	Sparke Helmore Solicitors