Mansfield and Repatriation Commission
[2000] AATA 435
•2 June 2000
DECISION AND REASONS FOR DECISION [2000] AATA 435
ADMINISTRATIVE APPEALS TRIBUNAL)
Nº N98/1392
VETERANS' APPEALS DIVISION)
Re: RICHARD CHARLES MANSFIELD
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mrs H.E. Hallowes, Senior Member
Date:2 June 2000
Place:Sydney
Decision The decision of the Repatriation Commission dated 24 June 1997, which was affirmed by the Veterans' Review Board on 10 June 1998, is varied to provide that Mr Mansfield's hypertension is defence-caused. The matter is remitted to the Repatriation Commission to determine the rate of pension payable.
(sgd) H.E. Hallowes
Senior Member
VETERANS' AFFAIRS — entitlement — generalised anxiety disorder, hypertension — obesity — whether war-caused or defence-caused — four days service in Vietnamese waters —twenty years defence service – weight increase – whether psycho active substance abuse
WORDS AND PHRASES — "clinical onset"
Administrative Appeals Tribunal Act 1975 ss.23(1)(a), 37
Veterans' Entitlements Act 1986 ss.21A, 120, 120A, 120B, 196B
Statements of Principles concerning Generalised Anxiety Disorder
Instruments Nos 48 and 49 of 1994 as amended by Instruments Nos 275 and 276 of 1995
Instruments Nos 1 and 3 of 2000
Statements of Principles concerning Hypertension
Instruments Nos 83 and 84 of 1995
Instruments Nos 64 and 65 of 1998
Instruments Nos 25 and 26 of 1999
Statement of Principles concerning Proactive Substance Abuse or Dependence
Instrument No 77 of 1998
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Keeley [2000] FCA 532 (28 April 2000)
Re McLeod-Dryden and Repatriation Commission (1998) 53 ALD 42
Re Witten and Repatriation Commission (1998) 54 ALD 605
REASONS FOR DECISION
2 June 2000 Mrs H.E. Hallowes, Senior Member
Review
Mr Mansfield seeks review of a decision of the Repatriation Commission made on 24 June 1997, which was affirmed by the Veterans' Review Board ("VRB") on 10 June 1998, that his "generalised anxiety disorder and hypertension" were not war-caused or defence-caused under the Veterans' Entitlements Act 1986 ("the Act"). The Repatriation Commission found that Mr Mansfield's bilateral sensorineural hearing loss with tinnitus was defence-caused, the decision taking effect from 10 January 1997, although no rate of pension was payable to Mr Mansfield after assessment under the Guide to the Assessment of Rates of Veterans' Pensions ("the Guide") pursuant to section 21A of the Act. The parties did not lead any evidence before the Tribunal with respect to Mr Mansfield's entitlement to be paid pension under the Act and asked the Tribunal to remit that matter to the respondent should the Tribunal make a decision more favourable to Mr Mansfield.
DocumentsThe Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents") ("the AAT Act), together with additional material lodged by both parties at the hearing. Mr Mansfield was represented by Mr C. Colbourne and the Repatriation Commission by Miss R. Henderson both of counsel. After the hearing commenced, one of the Tribunal members ceased to be available for the purposes of the proceeding and, with the agreement of the parties, the Tribunal was re-constituted under paragraph 23(1)(a) of the AAT Act for the purpose of determining the matter.
The documents disclose that Mr Mansfield was born on 5 April 1953. He entered service in the Royal Australian Navy on 2 May 1970. He was discharged on 1 May 1990. He rendered defence-service from 7 December 1972 to 1 May 1990 and operational service from 4 to 8 November 1971 while on board HMAS Derwent port to port.
Mr Colbourne provided the Tribunal and the respondent with a useful chronology. While not forming part of the evidence before the Tribunal it was based on the documents and the summary was not disputed by Miss Henderson. The chronology records Mr Mansfield's blood pressure and weight during service as follows:
Chronology9/1/70 Medical examination record –
120/60
154 lbs (70 kgs)31/10/72 Medical examination record –
120/70
167 lbs (76 kgs)9/12/74 Medical examination record –
120/80
82 kgs17/7/78 Medical examination record –
120/80
89.55 kgs8/8/79(?) 110/70
90 kgs
27/8/79 120/80
2/4/80 120/85
94 kgs
29/5/80 110/70
16/12/80 125/95
9/11/81 110/70
90 kgs
28/2/83 125/80
93 kgs
1/6/83 110/80
80.5 kgs
27/3/84 Out-patient Record – weight surveillance
120/80
90 kgs7/5/84 110/60
85 kgs
22/5/84 110/60
85.8 kgs
8/6/84 110/70
88 kgs
15/5/86 120/80
88 kgs
23/7/86 83.3 kgs
14/12/87 Medical examination –
130/100 sitting and 130/85
95.5 kgs" Supplementary Health Examination –
155/90 sitting
95.75 kgs21/12/87 93 kgs
20/1/88 120/85
90 kgs
20/6/88(?) 120/85
90 kgs
5/9/88 125/80
84.5 kgs
23/8/89 High blood pressure today
5/9/89BP check 140 or 170/110 at recent – review now 130/80 arm
20/2/90 Physician
10-12 years headaches – 1 every 2-3 weeks, regular heartburn frequently after certain foods some acid regurgitation at night length discussion of tension headaches and lifestyle
130/100
96 kgs.
Applicant's Evidence
The Tribunal had before it a statement made by Mr Mansfield on 23 June 1999 (exh A). He also gave oral evidence. He said that his grandfather had served in the Merchant Navy, and that a brother had served in the Royal Australian Navy. After training at HMAS Cerberus for three months he was posted to Derwent which was a destroyer escort. He became an ordinary seaman/radar plotter, which meant working in a dark room below the bridge tracking aircraft and other shipping.
After six months based at Williamstown the Derwent sailed to Sydney and he found out, after leaving that port, the ship was on its way to Vietnam. The Derwent sailed to the Far East on a six-month deployment, being on standby for 27 days to go on the gun line in case of a disaster on a ship in Vietnamese waters. Between 4 and 8 November 1971, the Derwent was in Vietnamese waters, having sailed from Singapore. On 6 November the Derwent anchored in Vung Tau Harbour. All personnel were required to be at battle stations. During anchor Mr Mansfield was on 4-hour radar duty and he kept watch during two 1-hour shifts to look out for boats, bubbles and small craft. He was ready to throw grenades to avoid mines being attached to the ship.
The Derwent then sailed back to Singapore and on to Sydney. Mr Mansfield said that for six months he was "scared out of my pants". He had no one to talk to. The radio and papers kept the crew informed about the war in Vietnam. Mr Mansfield feared that he would not return to Australia. He was not aware that he would be spending only one day in harbour. He built up an impression of what it would be like and yet "the next minute it was all over". He felt disappointed and let down.
Mr Mansfield was under drinking age when based at Cerberus. Once he turned 18 years he received the usual issue of one can of beer per week depending on drills. He said that on leaving Vietnamese waters he found that he was drinking more and he bought the beer issue of others. He started to find it hard to concentrate and all he seemed to do was eat, drink and smoke in order to cope with everyday stress. He put on weight and he was placed on weight surveillance.
On return to Australia he undertook a radar plotter's course and, despite having found his school work easy, he now realised he had problems concentrating and sitting still and he started to avoid crowds and to work alone. He ceased to be "a team player". On posting to HMAS Melbourne he switched to naval stores when he found out personnel in that area received the same pay for a much easier job which had less stress. Mr Mansfield told the Tribunal that he applied for a remote area posting, hoping he would be posted to Darwin, only to find that he was posted to HMAS Basilisk on Manus Island, Papua New Guinea. However, he enjoyed the posting until Papua New Guinea became independent when conditions deteriorated. He was required to act as a sentry to protect Australian medical staff, including nurses who remained in Papua New Guinea. He said that the locals were not friendly and they carried knives with large blades, whereas those on sentry duty were only issued with a rifle but no bullets. He thought that he would be killed as he had thought when he was in Vietnamese waters. He had been drinking rum and coke and his intake increased to approximately a bottle of rum per day. In his opinion he started to suffer stress in 1975. After 12 months he had 2 months leave and he returned to his home town in 1976 where he found all his former mates were working during the day and that they had married. He said he spent his time drinking at hotels from 11:00 a.m. to 11:00 p.m. His medical problems started.
During the next three years, Mr Mansfield tried to cut down his drinking. He was posted to Darwin where the life-style was easy going. Alcohol was cheap and there was an expectation that he would drink at lunchtime and after work. Alcohol was subsidised. Mr Mansfield said that he was advised he had a "fatty liver" and he was again placed under weight surveillance. He said that he got into arguments which he always lost; he felt belittled and he lost confidence. He left the Navy in 1990.
Since leaving the Navy, Mr Mansfield has worked as a storeman for the services. In his opinion he has not been promoted because he goes to pieces at interview, feeling stressed beforehand. He told the Tribunal that during service he began crying and he continues to suffer from stomach cramps, vomiting and he has experienced sweats over the last two to three years. He does not sleep well. He now attends a psychiatrist and he takes medication for stress. He finds that drinking calms him down and relaxes him and he can then talk to others. Family relationships have deteriorated and issues have arisen for him with his children. Having heard his evidence, the Tribunal is satisfied that that is a matter which worries Mr Mansfield and causes him stress. He does not know what is wrong. He has been particularly concerned during the last 12 months, that with privatisation, he will lose his job.
The LegislationSections 120, 120A and 120B provide, so far as relevant, with respect to determining Mr Mansfield's entitlement arising with respect to both his operational and defence service:
120(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
. . .(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
. . .
120A(1) . . .(2) . . .
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
(4) . . .
120B(1) . . .
(2) . . .
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4) . . .
When the Repatriation Commission determined the matter the delegate referred to factors in the Statements of Principles ("the SoPs"), presumably, Instruments Nos 48 and 49 of 1994 concerning Generalised Anxiety Disorder as amended by Instruments Nos 275 and 276 of 1995 which came into effect on 21 June 1995. Instrument No 48 of 1994 provides, so far as relevant:
1.Being of the view that there is sound medical-scientific evidence that indicates that generalised anxiety disorder . . . can be related to operational service rendered by veterans, . . . the Repatriation Medical Authority hereby determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting generalised anxiety disorder . . . with the circumstances of that service, are:
. . .
(b)experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder; or
. . .
4.For the purposes of this Statement of Principles:
"generalised anxiety disorder" means a psychiatric disorder . . . which meets the following description (derived from DSM-IV):
(a) excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least six months, about a number of events or activities (such as work or study), which:
(i)the person finds difficult to control; and
(ii)which is associated with three or more of the following six symptoms, at least some of which are present for more days than not for the previous six months:
(A)restlessness or feeling keyed up or on edge;
(B)being easily fatigued;
(C)concentration difficulties or mind going blank;
(D)irritability;
(E)muscle tension;
(F)sleep disturbance (difficulty falling or staying asleep, or restless unsatisfying sleep); and
. . .
(iv)it does not occur exclusively during Post-Traumatic Stress Disorder; and
(v)either the anxiety or worry, or physical symptoms, cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
(b) which is not due to the direct physiological effects of:
(i)a drug of abuse; or
(ii)a medication; or
(iii)a general medial condition (such as hyperthyroidism); and
. . .
"stressful event" means an occurrence which evokes feelings of anxiety or stress.
Instrument No 49 of 1994 is similar except that paragraph 1(a) provides that the stressful event must be experienced not more than one year before the clinical onset of generalised anxiety disorder.
Instruments Nos 83 and 84 of 1995 concerning Hypertension came into effect on 8 March 1995. Instrument No 83 provides, so far as relevant:
1.Being of the view that there is sound medical-scientific evidence that indicates that hypertension . . . can be related to operational service rendered by veterans, . . . the Repatriation Medical Authority hereby determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension . . . with the circumstances of that service, are:
(a) suffering from persistent obesity before and continuing at least until the accurate determination of hypertension; or
(b)suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension; or
. . .
4.For the purpose of this Statement of Principles:
"accurate determination of hypertension" generally means the accurate measurement of blood pressure on a number of occasions. . . .
"hypertension" means:(a) a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg and/or where the diastolic reading is greater than or equal to 90 mmHg; or
(c)where treatment for hypertension is being administered,
. . .
"obesity" means having a Body Mass Index (BMI) greater than 30, where:
BMI = W¸H2
and where:
W is the person's weight in kilograms; and
H is the person's height in metres.
. . .
"psychoactive substance abuse or dependence" means a maladaptive pattern of use, as derived from DSM-IV, attracting ICD code 303 or 304, that is indicated by either:(a) continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b) recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated);
The relevant factors of Instrument No 84 are the same. Instruments Nos 83 and 84 were replaced by Instruments Nos 64 and 65 of 1998. The similar factors in Instrument No 64 are:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of a person's relevant service are:
(a) being obese at the time of the accurate determination of hypertension; or
(b) suffering from alcohol dependence or alcohol abuse involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks), at the time of the accurate determination of hypertension; or
. . .
The only difference with respect to the factors in Instrument No 65 is that factor 5(b) provides for a consumption of an average of at least 300 grams per week of alcohol. Those Instruments have been further revoked and replaced by Instruments Nos 25 and 26 of 1999.
Medical Evidence
The Tribunal had before it a report by Dr M. Miller, consultant physician, dated 24 May 1999 (exh C). Dr Miller examined Mr Mansfield on that day. Dr Miller noted that Mr Mansfield suffered labile diastolic hypertension during service, having noted Mr Mansfield's blood pressure readings in December 1987. He noted that Mr Mansfield's hypertension was first diagnosed by his general practitioner Dr Loh in 1989. The Tribunal notes that Mr Mansfield's local medical officer in 1997 was Dr C. Ho (T8 and T14) although the Tribunal does not know when Mr Mansfield first consulted Dr Ho. There is no reference to a Dr Loh in the documents. In Dr Miller's opinion Mr Mansfield's insomnia is likely to be contributed to by betablockading treatment. He obtained a history that Mr Mansfield had occasional nightmares about his service in Vietnam and Papua New Guinea. He formed the opinion that Mr Mansfield was "significantly depressed". He also noted Mr Mansfield's alcohol abuse, which, in his opinion, is related to Mr Mansfield's service.
Dr Miller reported that he had before him Instrument No 77 of 1998 concerning Alcohol Dependence or Alcohol Abuse which the Tribunal notes came into effect on 1 December 1998, that is, after the date on which the delegate of the Repatriation Commission made his decision. Dr Miller expressed the opinion that Mr Mansfield had suffered and continues to suffer from alcohol abuse and that he satisfied the definition of Alcohol Abuse in Instrument No 77. He was satisfied that Mr Mansfield had increased his alcohol abuse following an episode in Vietnam when he was on guard duty and that he increased his alcohol abuse following guard duty in Papua New Guinea and that he had experienced "a severe stressor within the one year immediately before the clinical worsening of alcohol dependence or alcohol abuse" (factor 5(d) of Instrument No 77). Issues with respect to Instrument No 77 are however not before the Tribunal which must consider whether Mr Mansfield's generalised anxiety disorder and hypertension are war-caused or defence-caused under those Instruments in effect at the date the delegate of the Repatriation Commission made his decision (Re Repatriation Commission v Keeley [2000] FCA 532 (dated 28 April 2000)). Any psychoactive substance abuse by Mr Mansfield involving daily consumption of alcohol is relevant as to whether Mr Mansfield satisfies Instruments Nos 83 and 84 of 1995 concerning Hypertension.
When giving oral evidence to the Tribunal Dr Miller noted that Mr Mansfield's hypertension was first diagnosed and treated in 1989. There are only two elevated readings during service and Dr Miller said that Mr Mansfield's blood pressure was normal with treatment when seen by him. He expressed the opinion that Mr Mansfield is moderately obese, to which his alcohol intake has contributed. Mr Mansfield's headaches would not be related to his blood pressure but rather to his anxiety.
The Tribunal also had before it a report by Dr M. Dent, psychiatrist, dated 6 July 1999 (exh B). He examined Mr Mansfield on 7 May 1999. Dr Dent obtained a history, amongst other things, that Mr Mansfield does not have bad dreams or nightmares but it is more that, if he thinks back, it scares him. He told Dr Dent that he does not feel he did enough during his 27 days on the reserve line compared with some of his mates. Dr Dent expressed the opinion:
From my point of view and looking at SOP, your client describes on more days than not symptoms of anxiety which he feels are difficult to control, where has [sic] a continual feeling of being restless or keyed up (A), easily fatigues (B), concentration difficulties (C), irritability (D), he feels "uptight mainly" and this may be muscle tension or (E) and where there is a certain and very clear description of difficulty remaining asleep or having unsatisfying and restless sleep (F).
When I went through these carefully with him at interview, for each of those I have just mentioned above he was very certain these have been present at least since 1972.
I think your client therefore fits the necessary criteria for a Generalised Anxiety Disorder, it is not a Post Traumatic Stress Disorder and it is very evident how much of his anxiety and the other effects are causing significant distress within his marriage, within his work and socially as well; it is certainly not the direct physiological effect of drugs of abuse or medication or any other general medical condition such as excessive thyroid function and it is not part of a mood disorder, psychotic disorder or pervasive developmental disorder.
The same general comments apply if one looks at the SOP for GAD of 1995, I'm only able to comment upon the SOP for hypertension of 1998 in general medical knowledge; I'm' unaware of his usual blood pressure readings, but certainly the amounts of medications he's been required to take attest to the severity of this disorder, although we do note that there has been alcohol dependence or alcohol abuse during his period of Service; I note in the Navy that apparently hypertension has been noted. It will require an opinion from a specialist who is a physician to provide a proper opinion in that sense, I can only support it in the way I have stated above.When giving oral evidence to the Tribunal Dr Dent expressed the opinion that both service in Vietnam and Papua New Guinea contributed to Mr Mansfield's symptoms. He said that a second event will significantly aggravate the symptoms of an earlier event. He found that Mr Mansfield suffered tension headaches, muscular symptoms and abdominal pain as a reaction to stress. In response to a question from Miss Henderson he agreed that headaches and abdominal pain may have other causes. The factor which Dr Dent turned his mind to, and which the Tribunal must consider with respect to Mr Mansfield's operational service and whether a reasonable hypothesis is raised connecting his generalised anxiety disorder with his service, is factor 1(b) of Instrument No 48 as amended. Factor 1(a) of Instrument No 49 must exist before it can be said that Mr Mansfield's generalised anxiety disorder is connected to his defence service. Dr Dent said that in his opinion Mr Mansfield experienced a stressful event in Papua New Guinea when protecting medical staff after independence and that Mr Mansfield experienced the first four of the indicia with respect to generalised anxiety disorder.
Dr R. Lewin, psychiatrist, examined Mr Mansfield on behalf of the Repatriation Commission, Mr Mansfield having been referred to Dr Dent by his solicitor. The Tribunal had before it Dr Lewin's report of 27 May 1999 (exh 1). Dr Lewin reported that he examined Mr Mansfield on 25 May 1999. He obtained a history that Mr Mansfield had first seen a psychiatrist after leaving the Navy in 1990 and he reported a range of symptoms over the last 5 to 10 years. At the time he was examined by Dr Lewin Mr Mansfield was consulting Dr A. Pusik, psychiatrist, on approximately a monthly basis. He had originally been referred to Dr L. Lambeth, psychiatrist, and when Dr Lambeth discontinued private practice he stopped seeing a psychiatrist and discontinued medication for 12 months. He first saw Dr Pusik approximately 12 months before being examined by Dr Lewin.
Mr Mansfield provided a history to Dr Lewin, as he had to other medical practitioners, with respect to family matters and his concern with respect to his employment. Dr Lewin expressed the opinion that Mr Mansfield presented with a range of anxiety and depressive symptoms of low to moderate intensity. In his opinion they were of relatively recent onset and not related to Mr Mansfield's operational service. Dr Lewin did not obtain a history of anxiety nor medical treatment for anxiety after service and he attributed Mr Mansfield's current symptoms as being due to other stressors which "are only too apparent". In his opinion Mr Mansfield does not satisfy the diagnostic criteria with respect to generalised anxiety disorder.
In giving oral evidence to the Tribunal Dr Lewin said that Mr Mansfield's lassitude may satisfy the criteria of fatigue under the definition of generalised anxiety disorder. He again noted the problems, which had arisen for Mr Mansfield over the last 10 to 15 years. In his opinion, although Mr Mansfield may have an adjustment disorder, on the balance of probabilities, he would not call it a generalised "Anxiety Disorder". It is a reactive condition to his domestic problems.
The respondent had also provided the Tribunal with medical reports from Dr D. Richards, physician, dated 1 September 1999 (exh 3) and Dr M. Baz, occupational physician, dated 23 August 1999 (exh 2). Dr Richards noted that Mr Mansfield's hypertension is well controlled with therapy. In his opinion Mr Mansfield's hypertension is probably caused or exacerbated by his weight and alcoholic intake. Dr Richards noted Mr Mansfield's blood pressure readings and as a result could identify no reasonable hypothesis to associate Mr Mansfield's hypertension with his operational service nor his defence service. Dr Baz expressed the opinion that Mr Mansfield experiences moderate disability related to anxiety and depressive disorder. She noted that sleep aponoea had been diagnosed. The rest of Dr Baz's report is directed to issues which are not before the Tribunal.
SubmissionsMr Colbourne put to the Tribunal that the opinion of Dr Lewin with respect to Mr Mansfield's generalised anxiety disorder is "out of kilter" with the other medical evidence before the Tribunal. He suggested that the history taken by Dr Lewin was inconsistent with Mr Mansfield's clinical records during service (exh E), noting entries with respect to headaches, abdominal cramps, diahorrea and general malaise in January 1977. There is an outpatient record in May 1977, that Mr Mansfield was getting headaches and pain behind his eyes; he was referred to an opthalmologist. There are further reports of headaches in 1988, 1989 and 1990. The Tribunal notes that Dr Lewin does refer to Mr Mansfield's headaches in his report. The Tribunal is satisfied that Dr Lewin's report is not "out of kilter" with other medical practitioners. It is only his conclusions which differ from those of the other medical practitioners.
Mr Colbourne submitted that the term "clinical onset" meant that, had a veteran been observed at the relevant time, a diagnosis would have been made. In Re McLeod-Dryden and Repatriation Commission (1998) 53 ALD 428 the Tribunal said, at p.447:
(61) The term "clinical onset" is not defined in the SoPs. The tribunal has considered its meaning in a number of other decisions namely Re Saunders and Repatriation Commission (AAT, Nº 12180, 3 September 1997, unreported), Re Videan and Repatriation Commission (AAT, Nº 12627, 17 February 1998, unreported) and Re Robertson and Repatriation Commission (1998) 50 ALD 668. In Re Robertson the tribunal, at ALD 670, quoted Dr King's evidence as to his understanding of the term "clinical onset". He said:
"Clinical onset I think is a medical concept of when a doctor or a patient becomes aware that they have a problem so the clinical onset, as I have said here, may be the symptoms or it may be that we have found that the patient has an abnormality on a cardiograph."
In Re Robertson the tribunal at ALD 670, explained what, in its view, constituted a "clinical onset" of a disease:
. . . either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at the time.
(62) We consider that the term "clinical onset" means the onset of symptoms which a medical practitioner would diagnose as attributable to the relevant condition. As Dr King said in Re Robertson, the term "clinical onset" refers to the time when a doctor or patient becomes aware of symptoms which either then, or at a later stage, a doctor considers to have been due to the relevant condition. The tribunal finds that there can be "clinical onset" of a disease before the condition satisfies the definition of the disease in the SoP. In Mr McLeod-Dryden's case the clinical onset of the depressive disorder is the time when he first presented with symptoms that, on the evidence before the tribunal, could have been attributable to the existence of a depressive disorder. Logically it cannot be necessary to have "two or more major depressive episodes" before the onset of depressive disorder. It is the onset of the first signs or symptoms of depressive disorder which is significant.
In Re Witten and Repatriation Commission (1998) 54 ALD 605 the Tribunal said, at p.607, having referred to Re McLeod-Dryden, that:
In Re Hannelly and Repatriation Commission (AAT, Nº 12256, 2 October 1997, unreported) the tribunal noted that the meaning of "clinical" in The Macquarie Dictionary, 2nd ed, is:
"adj. 1. pertaining to a clinic. 2. pertaining to or used in a sickroom. 3. pertaining to medical training carried out in a hospital. 4. concerned with observation and treatment of disease in the patient (as distinguished from an artificial experiment) . . ."
and found in the circumstances of that application that the veteran's ischaemic heart disease did not occur until it was observed and treated. In Re Saunders and Repatriation Commission AAT 12180, 3 September 1997, the Tribunal set out a number of definitions:
"The Shorter Oxford English Dictionary 3rd edn, Claredon Press, Oxford 1973:
'Clinical — 1. Med, Of or pertaining to the sick-bed, spec. to that of indoor hospital patients. 2. Eccl. Administered on the sick-bed 1844.'
'Onset - 1. An act of setting on (an enemy); an attack, assault. B. (Without article.) Attack, assault, 1667. 2. The action or an act, of beginning some operation; commencement, start, 1561.'
The Macquarie Dictionary 2nd revision, 1987, reprinted 1989:
'Clinical — 1. pertaining to a clinic. 2. pertaining to or used in a sickroom. 3. pertaining to medical training carried out in a hospital. 4. concerned with observation and treatment of disease in the patient (as distinguished from an artificial experiment). 5. scientific; involving professional knowledge and not affected by the emotions; he has a clinical attitude to even the most distressing cases. 6. administered on a sickbed or deathbed; clinical conversion, or baptism.'
'Onset - 1. An assault or attack; a violent onset. 2. a beginning or start.'
Butterworth's Medical Dictionary 2nd edn, 1978, contains the following definition:
'Clinical - 1. Relating to a sickbed. 2. having reference to a clinic or to treatment at a clinic. 3. founded on observation and treatment of patients, not on the results of pathological or experimental work [see prec.].'."'
Having considered the above decisions, the Tribunal in Re Witten said that it was satisfied "clinical onset" meant the onset of symptoms which a medical practitioner would diagnose as attributable to a relevant condition which, although it may not have been diagnosed during the relevant period, taking into account the symptoms described by a veteran, would, with the benefit of hindsight, satisfy a medical practitioners that "clinical onset" had been established at the relevant time.
Findings with respect to Generalised Anxiety Disorder
The Tribunal is satisfied on the balance of probabilities that Mr Mansfield suffers from generalised anxiety disorder. Dr Dent made that diagnosis. Dr Lewin found symptoms of anxiety although he said he would not "call it" a generalised anxiety disorder. He noted a reactive condition to domestic problems. Dr Baz diagnosed an anxiety and depressive disorder. Dr Lambert, Mr Mansfield's treating psychiatrist, was of the opinion that he had a generalised anxiety disorder (T9). His referring general practitioner, Dr Ho, advised that Mr Mansfield suffered from anxiety problems. The Tribunal is satisfied that Mr Mansfield has at least three of the symptoms set out in the definition of generalised anxiety disorder in Instruments Nos 48 and 49 of 1994. His evidence and the history he has provided to medical practitioner is that he has sleep disturbance, muscle tension, difficulty with concentration and he is easily fatigued and on edge.
Having considered all the material before it, the Tribunal must consider whether the material points to a hypothesis connecting Mr Mansfield's generalised anxiety disorder with the circumstances of his short service in Vietnamese waters. Mr Colbourne hypothesised that Mr Mansfield's generalised anxiety disorder was connected to his service in Vietnam when he kept watch and was ready to throw grenades to avoid mines being attached to the Derwent. Mr Mansfield described the fear he felt at that time. There was in force a SoPs determined by the Repatriation Medical Authority under section 196B of the Act when the delegate of the Repatriation Commission made his decision. For completeness the Tribunal observes that the SoPs have now been revoked and replaced by Instruments Nos 1 and 2 of 2000. However, following Keeley's case (see paragraph 16 above) the Tribunal will apply Instruments Nos 48 and 49, as amended, concerning Generalised Anxiety Disorder. Turning to the first relevant SoPs Instrument No 48, the Tribunal must form the opinion whether the hypothesis raised is a reasonable one, that is whether it contains factor 1(b) of Instrument No 48 (see Repatriation Commission v Deledio (1998) 49 ALD 193 at p.206). Mr Colbourne put to the Tribunal that there had been clinical onset of Mr Mansfield's general anxiety disorder within two years of his service in Vietnam whereas Miss Henderson contended that Mr Mansfield had not identified "a stressful event" during his service in Vietnam and that the onset of any symptoms connected with his war service had not occurred within two years of his service in Vietnam, his symptoms of gastritis and abdominal pain recorded in 1971 and 1972 not being amongst the symptoms in the definition of generalised anxiety disorder in the SoPs. She pointed to the much later time at which Dr Ho had diagnosed the condition.
The Tribunal does not accept Miss Henderson's contention that Mr Mansfield has not suffered clinically significant distress or impairment in social, occupational or other important areas of functioning. The Tribunal is satisfied that Mr Mansfield's evidence and that of his treating medical practitioner points to this being so but not however during the relevant period under factor 1(b). Having considered Mr Mansfield's evidence and his history as disclosed by the documents, the Tribunal finds that the hypothesis raised by Mr Colbourne is not a reasonable one as it is not consistent with the template found in the SoPs. The hypothesis raised does not contain factor 1(b) as, even if Mr Mansfield suffered a stressful event, the raised facts do not point to the clinical onset of his generalised anxiety disorder as occurring within two years of his service in Vietnam.
Turning to his defence service, Mr Mansfield was posted to HMAS Basilisk Naval Support Facility on Manus Island, Papua New Guinea for a 12 month period. It was only towards the end of the period of his posting that he was on patrol to protect medical personnel. He gave evidence that he ate and drank more and smoked in order to cope with every day stress. The Tribunal finds, on the balance of probabilities, that his experiences on Manus Island were stressful but his evidence was that on return to Australia he took leave and, although he spent a considerable amount of time drinking, he did not suggest that he suffered the symptoms of generalised anxiety disorder as set out in the SoPs with respect to defence service. The evidence points to any social isolation he experienced on return as being due to the fact that his friends were now married and working rather than that his anxiety symptoms impaired his social functioning. The Tribunal finds that, even if he had consulted a medical practitioner at that time, he would not have been diagnosed as having generalised anxiety disorder. Mr Mansfield's present condition is not connected with his defence service under SoPs No 49 of 1994. The Tribunal is satisfied that his disorder is of more recent origin and largely arises out of non-service related factors. As suggested by Dr Lewin, reflection on his operational and defence service may be playing a part in his present condition, but the relevant SoPs place a time limit within which clinical onset must be established. The Tribunal will therefore not change the decision of the delegate of the Repatriation Commission with respect to Mr Mansfield's generalised anxiety disorder.
Findings with respect to HypertensionAt the hearing Mr Colbourne addressed factors in the more recent SoPs but what he had to say is also relevant to Instruments Nos 83 and 84 of 1995, in particular factors 1(a) and (b) (see paragraph 14 above). On discharge Mr Mansfield's height was 173 centimetres. He would be obese if he was over 90 kilograms. His weight in February 1990 was 96 kilograms. The records disclose that in 1972 he weighed 76 kilograms which increased to 90 kilograms by 1979. There is a note amongst the documents, dated 23 July 1986, "this member gained weight after elective colectomy". By February 1990, he weighed 96 kilograms (see paragraph 4 above). Mr Colbourne put to the Tribunal that there was a causal relationship between Mr Mansfield's obesity and his service, and that he self-medicated with alcohol. He relied on the reports of Dr Miller and Dr Baz. The SoPs which came into effect after the date of the decision of the delegate of the Repatriation Commission with respect to Mr Mansfield's service in Vietnam require a consumption of an average of at least 300 grams of alcohol per week and, during his service in Papua New Guinea and the defence force generally, a consumption of an average of 200 grams of alcohol per week. It was Mr Colbourne's contention that Mr Mansfield satisfied those criteria, but the Tribunal is satisfied that it should apply Instruments No 83 and 84 of 1995 to Mr Mansfield's circumstances. Mr Colbourne developed a hypothesis that Mr Mansfield's hypertension was connected with his service in Vietnam through his alcohol abuse which led to his obesity and therefore his hypertension.
Miss Henderson noted that on 23 August 1989 Mr Mansfield had been prescribed Indural for his blood pressure. She accepted that Mr Mansfield was suffering from hypertension at that time, which she put to the Tribunal was exacerbated by his obesity and alcoholism (T14). She contended that Mr Mansfield's alcohol intake was not sufficient to satisfy the SoPs. She noted that the Statement About The Causes of "Being Obese" refers to "weight gain". She put to the Tribunal that the matters contended on Mr Mansfield's behalf had not led to an increase in his base line weight of 20 per cent.
The Tribunal turns first to consider Mr Mansfield's service generally and its connection with his hypertension. His evidence was that, on leaving Vietnamese waters, he drank more and more. He put on weight and he was placed on weight surveillance. When serving in Papua New Guinea his intake of rum increased to approximately a bottle a day and the Tribunal is satisfied that his intake of alcohol continued until his hypertension was diagnosed such that it would satisfy the definition in the SoPs. On the balance of probabilities his hypertension is connected with the circumstances of his service, Instruments Nos 83 and 84 being more favourable than the later SoPs on which Miss Henderson focussed. The definitions in the earlier SoPs, which the Tribunal should apply, do not refer to "increase" or "weight gain". Mr Mansfield has had a maladaptive pattern of alcohol use and the figures in paragraph 4 above indicate the increase in his weight. Mr Mansfield's hypertension was first diagnosed and treated in 1989 thus satisfying the definition of hypertension. Other matters in Mr Mansfield's life probably contributed to his alcohol intake as well but his service is also connected. Dr Miller's evidence supports this finding.
It is for these reasons that the Tribunal will vary the decision of the Repatriation Commission to provide that Mr Mansfield's hypertension is defence-caused. The matter will be remitted to the Repatriation Commission to determine the rate of pension payable.
I certify that the thirty-three [33] preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H.E. Hallowes, Senior Member
(sgd) Catherine Thomas
Personal AssistantDate of Hearing: 17.11.99
Date of Decision: 02.06.00
Counsel for the Applicant: Mr C. Colbourne
Solicitor for the Applicant: Messrs Vardanega Roberts
Counsel for the Respondent: Miss R. Henderson
Solicitor for the Respondent: Department of Veterans' Affairs, Advocacy Division
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