Linwood and Repatriation Commission (Veterans’ entitlements)
[2015] AATA 704
•11 September 2015
Linwood and Repatriation Commission (Veterans’ entitlements) [2015] AATA 704 (11 September 2015)
Division Veterans’ Appeals Division File Number
2014/2037
Re
Mark Linwood
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 11 September 2015 Place Brisbane The Tribunal affirms the decision under review.
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CATCHWORDS
VETERANS’ AND MILITARY COMPENSATION – claim that asthma and major depression are connected to service – application of relevant statements of principles – requirements not made out – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
SECONDARY MATERIALS
Statement of Principles concerning depressive disorder No. 84 of 2015
Statement of Principles concerning depressive disorder No. 28 of 2008
Statement of Principles concerning asthma No. 61 of 2012
REASONS FOR DECISION
11 September 2015
Mr Mark Linwood says his depressive disorder and asthma ought to be accepted as being related to his service in the Army between 1987 and 1997. If he is right, those conditions would affect his entitlement to a service pension paid under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The Repatriation Commission accepts the conditions exist, but denies they are connected to the circumstances of Mr Linwood’s defence service.
I am not satisfied the asthma or depression conditions are related to the circumstances of Mr Linwood’s service. I explain my reasons below.
What happened?
Mr Linwood said he wanted to join the army because his father and brother had served, and he regarded military service as a family tradition. His first application in 1982 was unsuccessful after a psychological assessment: the assessor noted (exhibit one at p 37) the applicant experienced “social difficulties and personal inhibitions” that would put him at risk. A subsequent application was accepted and Mr Linwood enlisted in the Army on 10 February 1987. He had been examined again by Army psychologists who noted the outcome of the 1982 assessment but concluded Mr Linwood presented differently on the second occasion.
The applicant was posted to the Royal Australian Infantry Corps. He said he undertook basic training without any difficulty. His problems began after he was posted to his battalion and he was undertaking training. He recalled in his oral evidence (and in his statement: exhibit two) that he was involved in an urban warfare exercise in 1987. Gas canisters were used. He said he was forced to breathe through a haze for about 90 minutes. He started to have difficulty breathing. It appears he had an asthma attack.
Mr Linwood denied he ever experienced asthma before he enlisted. He provided a statement from his brother (exhibit six) to that effect. Mr Tim Linwood also said the applicant was a keen sportsman prior to 1987. Yet there are also numerous entries in the applicant’s Army medical records referring to a history of asthma that predated Mr Linwood’s service: see, for example, exhibit one at pp 32, 76, 78, 80, 90. I note the pre-enlistment medical exam dated 12 November 1986 records a detailed history of the applicant’s asthma attacks as a child aged 3-5 and then again as a 16 year old. The notes also record he had previously used Ventolin: exhibit one at p 79-80.
After the incident in 1987, Mr Linwood regularly had difficulty breathing. He said in his oral evidence that he was unable to keep up with training activities. He said he would regularly fall behind on runs, and he was rarely able to complete his daily PT routine. He was subsequently diagnosed by Professor Smithhurst with asthma: exhibit two. After the diagnosis Mr Linwood was no longer required to complete the same gruelling training schedule that was part of infantry life. (By way of example, he said in his oral evidence that he was no longer expected to complete runs along with the rest of his platoon; he walked.) His superiors also decided not to send him into the field on exercises. In time, he was transferred to work in the mess as a barman. He said his asthma was aggravated by the smoky environment there: exhibit two.
Mr Linwood said his illness was socially isolating and led to bullying behaviour. He recalled in his oral evidence that his sergeant bawled him out on parade on one occasion in late 1987 when he sought leave to attend the Regimental Aid Post (RAP). Mr Linwood said the sergeant was in a rage and called him names like “slug” and demanded to know why the applicant became an infantryman. Mr Linwood said he was taken out of sight behind a laundry block where the sergeant repeatedly cuffed him around the head, and Mr Linwood passed out. He said a corporal subsequently sent him to the RAP but the damage was done: apparently taking their cue from the sergeant, other soldiers in the platoon ostracised him. Mr Linwood said in his oral evidence that he would be excluded and abused, his bedding would be thrown out of the accommodation block and he would be doused with a fire hose when he was in the ablutions area. He also referred to at least one other incident when he was assaulted by a non-commissioned officer who accused him of being lazy during and after a run. Mr Linwood said no one was on his side, and he had no friends. He said his superiors would not let him play sport and gave him extra duties. He added that he did not understand why he was not allowed to go out in the field as he was aware other soldiers using Ventolin on account of asthma went on exercises. He said he began to experience symptoms of depression during this period.
The applicant transferred from the infantry in 1990. He was initially posted to a survey and engineering unit in Adelaide, although he also spent time in Darwin. He was charged in respect of his involvement in a fist fight in 1992, which prompted further psychological assessments (see exhibit one at p 68). (Interestingly, Mr Linwood did not argue the fist fight was evidence of any subjective distress: he said he was baited by the other party over a long period, and he responded entirely reasonably. He said the seriousness of the encounter had been exaggerated.) He agreed in his oral evidence that he had ongoing trouble completing the basic fitness assessment and he said he thought his officers reprimanded him more and treated him more strictly than other soldiers. He said in his statement that he failed two promotion courses in 1996. In is oral evidence, he added that he was told he would never be promoted.
Mr Linwood also experienced difficulties in his personal life during the 1990s. There is a series of entries (exhibit one at p 55) in October - November 1996 recording a breakdown in his relationship with a married woman in the middle of that year which led to serious depression and incidents of self-harm.
Mr Linwood was discharged from the Army in 1997 after he was certified as being medically unfit: exhibit one at pp 160-162. His final medical board examination dated 9 September 1997 recorded that he suffered from an ankle injury that occurred during sport (a record of that injury is in exhibit one at p 163), major depression and asthma.
The applicant was a poor historian in the witness box. He was combative and did not have a clear recollection of dates and incidents. That is not altogether surprising, given his condition. Dr Jenkins, his treating psychiatrist, said the applicant’s “capacity to present sequential coherent historical information is impaired”: exhibit four. I note the applicant observed in his statement (exhibit two): “I don’t remember very much about my last years in the Army.” He said he had a severe drinking problem and that he was heavily medicated. I accept he was doing his best to assist the Tribunal at the hearing and I do not suggest for a moment that he was being dishonest, but it is still difficult to know what to make of his evidence.
The Army records do not disclose clear evidence of bullying, which is not altogether surprising, but the Army medical records do include references to a serious suicide attempt in August 1992 (exhibit one at pp 66, 67; exhibit 5) that was obscurely described as an “acute transient situational disturbance”. The report from Dr Marinovich, a psychiatrist, dated 19 November 1996 suggested only that the earlier incident was connected to “problem areas in his life at that time” while the incident in 1996 was precipitated by the break-up of his relationship: exhibit one at p 45. A final report from the medical board suggested the depression was “related to Army service, Personal life and a personality disorder”: exhibit one at p 43. That is not very helpful.
Mr Linwood says he continues to suffer serious psychiatric illness. He experienced a number of incidents of self-harm since he was discharged. He said he did not seek psychiatric help until comparatively recent times. He has been seeing Dr Jenkins since 2013. Dr Jenkins acknowledged there were other factors contributing to the onset of the applicant’s condition but concluded the circumstances of Mr Linwood’s service played the most significant role. Dr Jenkins diagnosed the condition as major depression with psychosis which commenced in 1992: exhibit one at p 186; see also exhibit 4. While Mr Linwood did report some symptoms of depression as early as 1990, none of the medical experts were prepared to say a diagnosis of depression was able to be made at that point.
How the law applies
I must decide whether Mr Linwood’s conditions are accepted as being related to his service. That requires me to have regard to the statement of principles (“SoP”) published by the Repatriation Medical Authority in relation to each condition. I will deal with the conditions in turn.
A person claiming to have asthma as a consequence of his or her service must address the relevant SoP, which is No 61 of 2012. Clause (6) of the SoP refers to a variety of events or circumstances that may be regarded as factors in the onset of asthma. If those events or circumstances are themselves connected to service, the causal connection between the condition and the defence service can be made out. It is unclear which of the factors the applicant relies upon to make out his claim. His representative at the hearing, Mr Wise, suggested the condition was brought on by exposure to gas during the exercise in 1987, but there is no medical diagnosis consistent with that theory of the case: the medical records refer to asthma being brought on by exercise (see, for example, entries at exhibit one at pp 67, 75 and 77, and there is no mention of physical exertion as a factor in the SoP. But the Commission says the applicant cannot satisfy the SoP in any event because he had a long history of asthma that predated his service.
I am not satisfied the applicant is able to rely upon any of the factors in clause 6 – both because his asthma appears to be associated with exercise, which is not covered in the SoP, and because there does appear to be a history of pre-enlistment asthma that was referred to in exhibit one at pp 79-80. (Mr Linwood, in cross-examination, said he did not recall having asthma – and Mr Tim Linwood shared the same recollection – but it is not uncommon for asthma sufferers to be unaware of the precise nature of their condition, particularly where they experience symptoms that might go undiagnosed or be undertreated as a child.) The applicant did not press an argument that there was a clinical worsening of a pre-existing condition: he simply denied there was such a condition. But given my finding that the asthma was exercise induced and there was no basis for connecting recurrent asthma attacks with any of the factors, I do not think a claim for clinical worsening could be sustained in any event. It follows I am not satisfied Mr Linwood’s asthma can be attributed to his service.
I turn now to the applicant’s depression condition. There was some confusion in the material over the relevant SoP. Mr Crowe, for the Commission, submitted the applicable SoP was No 28 of 2008. But after the hearing concluded, a new SoP was determined: No 84 of 2015. It became necessary to give the parties a further opportunity to make submissions in light of the new SoP. Mr Crowe made submissions in a timely way; submissions on behalf of the applicant were lodged as these reasons were being finalised.
As it happens, there are few relevant differences between the current SoP and the previous SoP (No 28 of 2008). It was not suggested – and I have no basis for concluding – the applicant experienced a category one stressor within the meaning of either SoP. But Mr Crowe conceded there was evidence the applicant had experienced a category two stressor during the course of his service. Examples of category two stressors in the dictionary in Schedule one to the SoP include:
(c) having concerns in the work or school environment including on-going
disharmony with fellow work or school colleagues, perceived lack of
social support within the work or school environment, perceived lack
of control over tasks performed and stressful work loads, or
experiencing bullying in the workplace or school environment;
I have already described my concerns about aspects of the applicant’s account. Even so, I accept his evidence establishes he did experience social isolation, disharmony and bullying while he was in the infantry unit. I also accept that experience was linked to the circumstances of his service because the behaviour towards him was prompted by his inability to undertake ‘normal’ physical activities. But more is required before I can be satisfied the applicant’s claim satisfies the SoP.
Factor 9(1)(e) says the category two stressor must have occurred within six months before the clinical onset of the applicant’s depressive condition. A careful review of the medical evidence shows the applicant experienced social difficulties and personal inhibitions before he joined the Army: see exhibit one at p 37. But he was ultimately allowed to enlist. While the applicant recalls having a difficult time when he served in the infantry unit, the first diagnosis of a psychiatric problem was in 1992 when he experienced the “acute transient situational disturbance”. (He was also referred for psychological evaluation after a brawl in 1992 but Mr Linwood indicated in his oral evidence that the incident was not the product of any subjective distress on his part, but was an entirely reasonable response to niggling behaviour from another soldier in a bar.) Mr Linwood went on to develop more serious psychiatric issues by 1996.
Almost all of the examples of category two stressors that Mr Linwood described in his oral evidence occurred in the infantry unit. He left that unit in 1990, well over a year before severe psychiatric problems manifested themselves in 1992. While he spoke about failing promotion courses between 1992 and 1996, and described a sense that his superiors were treating him more harshly than his contemporaries, his recollection of this period was much less specific and prone to generalisation. I do not have sufficient evidence to be satisfied the applicant experienced a category two stressor connected with his workplace in the six months before 1996 (or even in the six month period before he was involved in a brawl or experienced the acute transient situational disturbance in 1992).
While there are some differences between the current SoP and the former one, I am not satisfied the applicant would fare any better by reference to factor 6(a)(v) of the old SoP which is relevantly the same as the current SoP.
Mr Wise, for the applicant, also referred to the existence of the ankle injury that is noted in exhibit one at p 163. The report suggests the incident occurred in 1995. Mr Wise said the ankle injury might have been a factor in the onset of depression. If I accept Dr Jenkin’s view that depression was properly diagnosed in 1992, it is difficult to see how the applicant can argue his subsequent ankle injury was a factor in the onset of depression. But if I accept the depression was not diagnosed until 1996, or clinically worsened at that point, the applicant could succeed if he were able to satisfy factor 9(h) or (j) in the current SoP (or the equivalent provisions in the old SoP). Factor 9(h) refers to “having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the two years before the clinical onset of depressive order” while factor 9(j) refers to “having a severe, chronic medical condition for the five years before the clinical onset of depressive disorder”. There is no evidence to suggest the ankle injury was “life threatening” or resulted in “serious…disability”, or that it was “severe”.
Conclusion
The decision under review must be affirmed.
I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of
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Associate
Dated 11 September 2015
Date of hearing 6 May 2015 Date final submissions received
9 September 2015 Advocate for the Applicant Stephen Wise Solicitors for the Respondent Department of Veteran's Affairs
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