KEVIN GARLAND and REPATRIATION COMMISSION
[2010] AATA 126
•18 February 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 126
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0232
VETERANS APPEALS DIVISION ) Re KEVIN GARLAND Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date18 February 2010
PlaceTaree
Decision The Tribunal varies the diagnosis to Recurrent Major Depressive Disorder but otherwise affirms the decision under review.
..................[sgd]...........................
Dr J D Campbell
Member
CATCHWORDS
Veterans’ Entitlements – Defence service – Claim for psychiatric condition – Diagnosis of psychiatric condition – Relationship to service.
Veterans’ Entitlement Act 1986: 120(4) 120B
Benjamin v Repatriation Commission (2001) 64 ALD 411
Lees v Repatriation Commission [2002] FCAFC 398
REASONS FOR DECISION
18 February 2010 Dr J D Campbell, Member 1. Mr Garland was born in 1948. Mr Garland served in the Australian Army from 15 January 1975 to 29 September 1995, with his rank on retirement being Warrant Officer Class 2. Mr Garland did not experience operational service, but the totality of his service constituted eligible service (defence service).
2. Mr Garland lodged a claim on 20 April 2006 in which he nominated the following new disabilities:
·Osteoarthrosis of left and right knee
·Depression
·Recurrent dislocation left shoulder
Mr Garland sought an increase in the rate of payment of disability pension because of particular accepted disabilities becoming worse, namely:
·Left knee and left shoulder
3. In a determination dated 26 July 2006, the Repatriation Commission accepted Mr Garland’s claim in relation to osteoarthrosis of the left knee, osteoarthrosis of the left shoulder and osteoarthrosis of the right knee. In relation to the claim for depression, the condition was diagnosed as Adjustment Disorder with Anxious and Depressed Mood, and the condition was found not to be related to service. Mr Garland’s disability pension was increased to 100 per cent of the General Rate with effect from 20 January 2006. It is noted that the increase in the rate of pension also covered Mr Garland’s application for increased rate of pension lodged on 20 April 2006.
4. On 4 August 2006, Mr Garland sought review by the Veteran’s Review Board. His appeal was unsuccessful. In his application to this Tribunal, Mr Garland seeks a review of the primary decision so far as it is concerned with his claimed disability of ‘depression’. In the event that Mr Garland is successful with his claim, both parties agreed that the matter be remitted to the Respondent for assessment.
ISSUES
5.The relevant issues in this matter are:
(a)Does Mr Garland currently suffer from a psychiatric condition and, if so, what is the diagnosis of that condition?
(b)If a diagnosed condition is found to exist, is such a condition related to Mr Garland’s period of eligible service?
(c)Is Mr Garland successful in this application?
BACKGROUND
6. In the material before the Tribunal I note the following relevant information:
·A diagnosis of chronic episodic depression made by Dr R Watson, Mr Garland’s treating general practitioner, in the claim lodgement form located at T6 page 17 of the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents)..
·Service clinical records indicate that Mr Garland presented crying on 11 October 1981 at 1 Military Hospital complaining that he had cancer and was going to die. He was subsequently admitted to 1 Military Hospital on 12 October 1981 with a two month history of multiple symptomatology, including change of bowel habit, anorexia (no weight loss), chronic tension headache, lethargy, disinterest, disturbance of sleep pattern, afraid of cancer (sure he was riddled with it). However, Mr Garland denied any significant stress. He was seen by Dr James, psychiatrist, and later discharged from the hospital on 28 October 1981 with a diagnosis of depressive reaction. He was to be reviewed further in outpatients by Dr James on 28 November 1981 (T6, pages 32-33).
·Dr Klaas Akkerman, consultant psychiatrist, in a report dated 7 June 2006 (T9) noted that Mr Garland stated that the symptoms he complained of in 1981 were symptoms that he had all his life (T9, page 55). At the time of consultation, Dr Akkerman recorded Mr Garland’s current symptoms as:
Occasional mild insomnia
Concentration is impaired
Short term memory is impaired – long term memory is normal
Has a lack of energy
Has little interest in things
Appetite fluctuations
Libido is down
Occasionally irritable
Sometimes tearful
Mood is depressed
·Dr Akkerman further noted in this report that Mr Garland stated that his psychiatric symptoms commenced around the time he joined the Army in 1975, and that he was not capable of nominating any particular stressors during his period of service.
·Dr Akkerman considered that Mr Garland suffered from a mild Adjustment Disorder with Depressed and Anxious Mood. Dr Akkerman also records that Mrs Garland, the Applicant’s wife, stated that he has always been like this, with the symptoms commencing around 1975.
·Dr Akkerman considered that in the absence of specific stressors, he was unable to come to any other conclusion other than his condition having a constitutional basis. Dr Akkerman also concluded that the veteran’s psychiatric incapacity is not permanent.
·Service clinical records do not disclose any further notation concerning psychiatric complaints during his service. However, it is noted that Mr Garland is recorded as having suicidal thoughts during his admission in 1981, and had experienced such thoughts “once before when life was all against him” (T13, page 87).
EVIDENTIARY MATERIAL
7. In a statement dated 25 April 2008, taken in as evidence by the Tribunal as Exhibit A5, Mr Garland described his relationship to Private Koolmeister, a soldier selected for officer training, who was killed in a motor cycle accident on his day of departure for such training. Mr Garland in oral evidence further detailed the circumstances and, in so doing, noted that his duty post the accident was to retrieve any property from the accident site. Further, Mr Garland stated that he never spoke with the deceased’s parents or attended the funeral, but started to wonder if he was in some way responsible for his death. Mr Garland’s position as Pte Koolmeister’s relevant non-commissioned officer is reinforced in a statement by Mr Steven Jory, a fellow contempory serviceman.(Exhibit A6).
8. In a further report dated 4 April 2008 (Exhibit A4), Dr Akkerman noted that particular stressors were mentioned by Mr Garland during the Veterans’ Review Board hearing on 25 November 2007. Stressors nominated included the following issues in 1981:
·Demoted to sergeant[1]
·Financial difficulties
·Marital difficulties
·Death of family member from cancer
·Death of Pte Koolmeister
[1] Should have been recorded as a promotion
9. Dr Akkerman confirmed his previous diagnosis of an Adjustment Disorder with Depressed and Anxious Mood. Dr Akkerman, while recognising that causation was a difficult issue and that Mr Garland had a poor memory and is notoriously unreliable, was of the opinion that the stressors in 1981 were sufficient to cause the Adjustment Disorder at that time.
10. In a report dated 25 June 2008 (Exhibit A2), Dr Karl Koller, a consultant psychiatrist, agreed with the diagnosis made by Dr Akkerman. Dr Koller pointed to physical injuries in 1979 (dislocated shoulder and surgical repair) and in June 1981 (tear of anterior cruciate ligament, with reconstruction in 1989), together with continuing symptomatology from both physical injuries and issues arising and continuing surrounding the death of Pte Koolmeister in June 1981, as being the relevant stressors.
11. In a report dated 26 September 2008 (Exhibit R2), Dr G Robinson, a consultant psychiatrist, noted that Mr Garland was a difficult historian, in that answers to the same questions on different occasions were inconsistent. Dr Robinson noted the following symptoms described by Mr Garland:
Headaches
- Biggest problem and main symptom of depression. Subsequently not his biggest problem and was not a symptom of depression but were diagnosed as ‘migraine’.
Depression
- In 1981 admitted to hospital because of a bad headache – thought it may have been brain cancer – an aunt had died with brain cancer six months before this admission and his grandmother had died with brain cancer when he was six years old.
- At the time of this admission he did not think he was worried about the death of Pte Koolmeister, such an issue only arising as a consequence of people helping him with his claim, suggesting to him that his problems were caused by various things happening to him during his service.
- He did not tell Dr Akkerman about such service events when he first saw him because he did not know that such events had stressed him until his service records became available, and he found out that he had been diagnosed with depression in 1981.
That he probably had ‘a bit of depression’ from his early years in the army.
Traumatic experiences in service
- The death of Pte Koolmeister.
- The earlier death of Pte Mills.
Scratching
- Scratches himself when he gets agitated.
- Easily annoyed.
- Commenced in the early 1990s, at around the time he was accused of fraud and found guilty, although maintaining that he was innocent, despite pleading guilty on advice.
12. Dr Robinson records the following details of his interview with Mrs Garland:
·Mr Garland has always had headaches since he was a boy. They married in 1970 and she first noticed that Mr Garland seemed to be getting depressed a year or two later when he started ‘to close himself down’, ‘make himself a stranger’ and very much so – at this time she almost left him.
·Mrs Garland is recorded as stating he was really bad just before he joined the army, with the problems continuing in the army, with a really bad episode in 1979 or 1980, at which time he wrote her a letter saying that he wanted no more to do with her or the kids.
·Mrs Garland was unaware of Mr Garland having suicidal thoughts. She was also unaware of any issues to do with Peter (Pte Koolmeister). However, she was aware of a young fellow in the unit being killed in a car accident in 1980, but Mr Garland had not been upset by it.
13. Dr Robinson concluded that Mr Garland suffered from Major Depressive Disorder, recurrent – the onset being insidious, with the disorder appearing to have commenced when Mr Garland was in his mid twenties and prior to him joining the army. The cause of the illness appears to be one of long term low grade depression interspersed with more severe episodes.
14. In oral evidence, Mr Garland detailed issues surrounding the death of Pte Koolmeister. He stated that he was upset, did not react to the death, tended to lock feelings away and did not discuss such military work issues with his wife. He stated that he did not mention the death to Dr Akkerman as he did not feel comfortable with him.
15. Mr Garland also detailed circumstances of his promotion in 1981 to sergeant. This promotion involved more work, less available money, and more work responsibility, all of which combined caused strain on his domestic relationship. Mr Garland also noted that difficulties were also experienced because of his knee injury. Mr Garland did not dispute the history given by his wife as recorded in Dr Robinson’s report.
CONSIDERATIONS AND FINDINGS
16. I have paid much attention to the particulars of this matter. It is evident that Mr Garland has difficulty with memory, and that he is not necessarily consistent when giving answers to the same questions. I note the comments of both Drs Akkerman and Robinson in this regard. That such inconsistency and consequent variable reliability exists does create difficulty in considering this matter. I do believe, however, that Mr Garland’s difficulties in accurately recalling his clinical service and domestic history is a consequence of both his personality and his long standing psychiatric disorder. In so stating, I do not draw any negative inference concerning Mr Garland’s truthfulness as a witness. However, I do recognise that because of his memory difficulties, much of Mr Garland’s recollections are awakened by availability of past records and assistance in directing his attention to particular events, which may or may not be of relevance.
17. In such a situation, careful attention must be directed towards searching for corroborative material. In this regard, the service records are of some assistance, while the uncontested evidence of his wife is of significance. I do note that Mr Garland does not disagree with the material provided by his wife, nor was Mrs Garland presented as a witness in this matter.
18. In addressing the issue of diagnosis in this matter, I am more than satisfied that Mr Garland has had a psychiatric condition over many years. The evidence before me suggests that it commenced when Mr Garland was in his mid twenties, one to two years after his marriage and prior to joining the army (uncontested evidence of Mrs Garland).
19. There is documentary evidence of Mr Garland experiencing a depressive episode when admitted to hospital in 1981. While the army material before me does not reveal any further documented evidence of psychiatric symptomatology prior to his discharge in 1995, it is evident from Dr Robinson’s report, and also in part from the oral evidence of Mr Garland, that he exhibited particular signs and symptoms during his confrontation with the law in the early nineties. Further, I note that Mrs Garland has commented that up and downs continued throughout Mr Garland’s service career, with the evidence of all three psychiatrists and Dr Watson indicating that Mr Garland has a long standing and continuing psychiatric illness.
20. In the circumstances I have outlined, I conclude, on the balance of probabilities, that Mr Garland suffers from Major Depressive Disorder – Recurrent (Benjamin and Repatriation Commission (2001) 64 ALD 411 considered and applied). In so finding, I rely upon the clinical history as defined and the opinion of Dr Robinson. While I acknowledge that a diagnosis of Adjustment Disorder with Depressed and Anxious Mood has been made by both Drs Akkerman and Koller, I remain concerned that both opinions are formed and maintained upon the material that was available for them to consider. In relation to Dr Akkerman, it is evident that his diagnostic opinion was made in the absence of defined stressors, without a full understanding of Mr Garland’s service history (including issues around fraud) and, further, that he considered the condition was of constitutional origin. In his second report, Dr Akkerman concludes that particular service stressors are to be implicated, without clearly exploring the factual circumstances as to the detail and the consequent effect upon Mr Garland, as stated by him and corroborated by service records and/or enquiry from Mrs Garland – particularly in circumstances when he has concluded that Mr Garland is at best an inconsistent historian.
21. I would also distinguish Dr Koller’s diagnostic opinion in that, while he considers both the physical ailments and the various incidents in 1981 to be the appropriate stressors, he appears not to be concerned with the longitudinal history of the illness and fails to explore the factual circumstances surrounding the stressors nominated in 1981. Further to this, Dr Koller does not seek to attain corroborating evidence from either Mrs Garland or the service records as to what effect, if any, such stressors had on Mr Garland. I note that Dr Koller appeared satisfied to explain a continuing adjustment disorder from 1981 onwards on consequences of physical stressors (shoulder and knee injuries), which were appropriately treated and which did not seem to impede Mr Garland’s service career as evident in his promotional and clinical records.
22. I also observe that Dr Akkerman continues to maintain a diagnostic opinion in circumstances where the continuum of such an ongoing diagnosis requires the continuance of the stressor effect causing the disorder. In the circumstances where his initial diagnosis was made without identification of a relevant stressor, the maintenance of such a diagnosis on a stressor effect in 1981 is inconsistent with the nature and criteria necessary for such a diagnosis.
23. While Dr Koller appears to have placed more reliance upon the continuing application of physical stressors, neither he nor Dr Akkerman address the question of whether, in the first instance, Mr Garland’s stress related disturbance meets the criteria for another specific Axis I disorder, or exacerbation of a pre-existing Axis I or II disorder. Indeed, I note that in his second report Dr Koller states specifically that he has avoided consideration of a pure psychiatric diagnosis (Exhibit A3).
24. In addressing the issues of his psychiatric condition to his period of eligible service, I am obliged to consider the relevant Statement of Principles (SoP) which in this matter is No. 28 of 2008, concerning Depressive Disorder. I note that paragraph 3(b) of the SoP defines “depressive disorder” to include a group of psychiatric conditions which are manifested by a dysphoric mood. The definition is limited to major depressive episode, recurrent major depressive disorder etcetera. I am satisfied, on the balance of probabilities, that Mr Garland satisfies the diagnostic criteria nominated for recurrent major depressive disorder.
25. In considering the factors nominated within paragraph 6 of SoP No. 28 of 2008, I note the following factors:
(a)
(i)experiencing a category 1A stressor within the two years before the clinical onset of depressive disorder.
(ii)experiencing a category 1B stressor within the two years before the clinical onset of depressive disorder.
(iv)experiencing the death of a significant other within the one year before the clinical onset of depressive disorder.
(v)experiencing a category 2 stressor within six months before the clinical onset of depressive disorder.
26. I further note other definitions contained within paragraph 9 of the nominated SoP:
““a category 1A stressor” means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault ...;
(c) being threatened with a weapon, being held captive ....;
“a category 1B stressor” means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
...
(e)being an eyewitness to or participating in the clearance of critically injured casualties;
“a category 2 stressor” means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel ongoing distress, concern or worry:
(a) ...
(b)experiencing a problem with a long-term relationship including the break-up of a close personal relationship, the need marital or relationship counselling, marital separation or divorce;
(c)having concerns in the work or school environment including ... perceived lack of control over tasks performed and stressful work loads ...;
(d)experiencing serious legal issues including... ongoing involvement with the police concerning violations of the law, or court appearances associated with personal legal problems;
...
(f)having a family member or significant other experience a major deterioration in their health;
“a significant other” means a person who has a close personal bond or a close personal relationship and is important or influential in one’s life.”
27. In returning to a consideration of the factors nominated, I observe that I must be satisfied that the factor must exist before it can be said that, on the balance of probabilities, Mr Garland’s recurrent major depressive disorder is connected to his service. To be satisfied demands a standard of proof of reasonable satisfaction, specified in s 120(4) of the Veteran’s Entitlements Act 1986 (the VEA) as affected by s 120B.
28. In each of the factors nominated, I observe that a particular nominated event must occur within a nominated period before the clinical onset of the depressive disorder. The term ‘clinical onset’ has been considered in Lees v Repatriation Commission [2002] FCAFC 398, where the Full Court concluded that the clinical onset of a disease means that point in time when a clinician is able to define the necessary signs and symptoms consistent with meeting the criteria for the diagnosis of a particular condition.
29. In the material before me I note that Dr Akkerman records that the symptoms recorded when Mr Garland was an inpatient in 1981 were symptoms he had all his life, and that they were symptoms consistent with his current symptomatology. I note that Mrs Garland’s evidence as recorded was not contested by Mr Garland during oral evidence. I further note that Dr Robinson concluded that the clinical onset of Mr Garland’s depressive disorder was prior to him joining the army.
30. In light of the evidence outlined, I conclude that, on the balance of probabilities, Mr Garland’s Depressive Disorder commenced prior to his period of army service. In such circumstances, I conclude on the balance of probabilities that Mr Garland does not satisfy any of the factors nominated in the relevant SoP, and as outlined earlier in this decision, the clinical onset of his depressive disorder occurred prior to experiencing nominated events upon which Mr Garland relies.
31. I am mindful that Mr Garland has nominated particular events occasioned during his service upon which he relies. While consideration of such events is unnecessary, in the light of my earlier findings, I shall endeavour to deal with each within the context of the material in evidence:
(a) Marital difficulties
Clearly an issue prior to service and an issue which continued with a period of separation in October 1980. It is also noted that Mrs Garland was withdrawn as next of kin in 1982, 1985, 1987, 1989. There does not appear to be material indicative of Mr Garland experiencing a defined marital circumstance within the six month period of his hospitalisation in October 1981, even allowing for what is defined as a two month history of symptoms at that time.
(b) Work stressors
Mr Garland was promoted to Sergeant on 28 April 1981. Mr Garland found his new responsibilities onerous and time consuming – there is no suggestion by him that they were stressful, although he did state that such a promotion involved more time at work and less take home pay and in this regard such activities may have been stressful.
(c) The death of the aunt
There is an absence of material before me to indicate whether or not ‘the aunt’ had a close personal bond with Mr Garland and was important or influential in his life. The point in reference in this matter was the issue of brain cancer and the further association with his grandmother’s death from brain cancer when he was six years old.
(d) The death of
Pte Koolmeister
While Mr Garland was the man’s non-commissioned officer over a period of several years and played a part in Pte Koolmeister’s career preference, it is difficult to consider Pte Koolmeister as falling within the definition of ‘a significant other’, as there is no evidence to suggest that he was important or influential in Mr Garland’s life. This is reinforced by Mr Garland’s absence of involvement with the deceased’s funeral or family.
32. While I have detailed some of the issues before me I conclude that, on the evidence before me, I am not satisfied on the balance of probabilities that Mr Garland experienced a category 1A stressor, a category 1B stressor or experienced the death of a significant other. In relation to a category 2 stressor, I conclude that, on the evidence before me, Mr Garland may have experienced such a stressor. However, further material would be required to assist in further definition in relation to the marital situation and/or the death of his aunt, in so far as the aunt was seen as important and influential to Mr Garland.
33. I have been somewhat truncated in my consideration of the various stressors, as detailed consideration will not advance Mr Garland’s case in light of my earlier findings.
34. In addressing Mr Garland’s claim against the SoP current at the time of lodgement and primary determination of the claim, I note that the relevant SoP is No. 59 of 1998. I note that factors 5(a), (c), (e) and (f) are relevant factors, with factor 5(a) and 5(c) requiring Mr Garland to have experienced a severe psychosocial stressor within one year immediately before the clinical onset of depressive disorder (5a), or before the clinical worsening of depressive disorder (5c).
35. A severe psychosocial stressor is defined within paragraph 8 of the SoP as meaning:
“ 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”
36. There is no doubt that the death of Pte Koolmeister was an identifiable occurrence. However, I have no evidence before me that such an event caused Mr Garland substantial distress. In so stating, I rely upon the following:
·Mr Garland’s account of his involvement after the death,
·His wife’s assessment as to her memory of her husband’s response,
·The absence of any mention of such during his admission for depression in October 1981 and at any time during his army service; and
·Mr Garland’s own evidence that his concern for what part he may have played in Pte Koolmeister’s demise only arose when encouraged to review his service career and records in search of stressors he may have experienced during service in preparation or his claim.
37. In addressing the issue of the death of his aunt from brain cancer, there is material which suggests that the cause of her death was a matter of great distress for Mr Garland when he presented in October 1981, believing he was riddled with cancer. I again note that his period of hospitalisation at that time was of some two weeks in duration and that his symptoms were consistent with an episode of a major depressive disorder. I also observe his recovery and continuance in service, with promotion for a further 14 year period. On the evidence before me I conclude, on the balance of probabilities, that such an admission was an episode of recurrent major depressive disorder and not clinical worsening of such a disorder, as clearly the evidence points to a long period of continuing good functioning as a soldier, with an absence of any clinical mention of a psychiatric disorder over the remaining fourteen years of service.
38. Similarly, I note that Mr Garland experienced some physical injuries in 1981 and earlier, but again there is no evidence that such injuries evoked feelings of substantial distress.
In concluding summary I find that in relation to:
(a)Factor 5(a) – Mr Garland may have experienced a severe psychosocial stressor around the time of the death of his aunt, but as previously concluded the clinical onset of Mr Garland’s depressive disorder was prior to service. In such circumstances, I conclude on the balance of probabilities that factor 5(a) is not satisfied.
(b)Factor 5(c) – Mr Garland experienced a knee injury in 1981. A major injury or illness is defined within the SoP:
“means a serious illness or injury that is life threatening or seriously disabling.”
There is no evidence before me which suggests that Mr Garland’s anterior cruciate tear in 1981 was life threatening or seriously disabling at that time. It is for this reason, and the fact that Mr Garland’s depressive disorder had a clinical onset prior to service, that I conclude on the balance of probabilities that factor 5(c) is not satisfied.
(c)Factors 5(e) and (f) both involve circumstances where there is a clinical worsening of the depressive disorder. In an earlier finding I concluded that Mr Garland’s admission to hospital in 1981 was an episode in his Recurrent Major Depressive Disorder and not a clinical worsening. In such circumstances, I am satisfied on the balance of probabilities that factors (e) and (f) are not met.
39. In light of my findings, I conclude that Mr Garland, on the balance of probabilities, has not satisfied any of the factors nominated in either the current SoP (No. 28 of 2008) or the SoP (No. 59 of 1998) which was current at the time of the primary claim. In such circumstances, I find that Mr Garland’s Recurrent Major Depressive Disorder is not related to his service.
40. As a consequence I vary the decision under review, in so far as it relates to diagnosis, by substituting Adjustment Disorder with Depressed and Anxious Mood with Recurrent Major Depressive Disorder. I conclude that the Recurrent Major Depressive Disorder is not related to Mr Garland’s services. The outcome remains that Mr Garland’s claim fails as his diagnosed condition was not related to his period of eligible service.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of DR J D CAMPBELL
Signed: ...............[sgd].................................................................
AssociateDate of Hearing 30 November 2009
Date of Decision 18 February 2010
Advocate for the Applicant Ms V Doran, Vietnam Veteran’s Association
Counsel for the Respondent Mr G Purcell
Solicitor for the Respondent Mr T O’Reilly, Department of Veteran’s Affairs
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