McNally and Repatriation Commission
[2006] AATA 393
•8 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 393
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/896
VETERANS' APPEALS DIVISION ) Re BARRY McNALLY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy, Member Date8 May 2006
PlaceBrisbane
Decision 1. The Tribunal sets aside the decision under review and determines as follows:
(a) The applicant does not suffer psychiatric disability of adjustment disorder.
(b) The applicant suffers the psychiatric disability of generalised anxiety disorder.
(c) The psychiatric disability of generalised anxiety disorder is not related to operational service or hazardous service.
(d) The applicant suffers contact dermatitis and this condition is related to eligible defence service and hazardous service.
(e) The applicant suffers endogenous (constitutional) dermatitis which is service related as environmental factors from his eligible defence service and hazardous service activated this condition
2. The matter is remitted to the Repatriation Commission for reassessment of the applicant’s entitlements to pension and/or treatment in accordance with this decision .
.........[Sgd]........
KS Levy
Member
CATCHWORDS
VETERANS’ AFFAIRS – operational service – hazardous service – adjustment disorder – generalised anxiety disorder – endogenous dermatitis – decision set aside and remitted to the respondent
Veterans’ Entitlements Act 1986 ss120, 120A
Re Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Benjamin v Repatriation Commission (2001) 70 ALD 622
Fogarty v Repatriation Commission [2003] FCAFC 136
Re Cockcroft and Attorney General’s Department (No 2) (1987) 13 ALD
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Hancock [2003] FCA 711
Mines v Repatriation Commission [2004] FCA 1331
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Stares (1996) 41 ALD 212
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes and Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Hill [2002] FCAFC 192
East v Repatriation Commission (1987) 16 FCR 517
Gilbert v Repatriation Commission (1989) 86 ALR 713
Repatriation Commission v Bey (1997) 79 FCR 364
White v Repatriation Commission [2004] FCA 633
Repatriation Commission v Stoddart (2003) 38 AAR 176
Woodward v Repatriation Commission (2003) 200 ALR 332REASONS FOR DECISION
8 May 2006
Dr KS Levy, Member 1. The applicant, Barry McNally, seeks review of a decision of the Repatriation Commission dated 14 March 2001 and a further decision of the Repatriation Commission dated 23 August 2002. The applications are made under s29(1) of the Administrative Appeals Tribunal Act 1975. The Repatriation Commission decision of 14 March 2001 refused a claim for contact dermatitis and otitis externa of both ears, while the decision of the Repatriation Commission dated 23 August 2002 refused a claim for adjustment disorder.
2. The above decisions were reviewed by the Veterans’ Review Board on 21 October 2004. The Veterans’ Review Board affirmed the decision in relation to endogenous dermatitis; and also affirmed the decision in relation to otitis externa and adjustment disorder.
3. The applicant claims that these conditions are interrelated and that they are specifically linked to his service in the Royal Australian Navy (RAN) while undertaking operational service in the Persian Gulf. The claim also relies on satisfying the Statement of Principles which are relevant to the issues outlined below.
4. The applicant was represented by Ms B Carter-Nicol of Counsel, who was instructed by Ms C Haney, of Haney Lawyers. The respondent was represented by Mr B Williams, an advocate with the Repatriation Commission.
Background
5. Mr McNally was born in Ballina, his date of birth being 14 March 1957. He is currently 49 years of age and was the third of six siblings. There are three surviving siblings. He described his father as being a problem drinker but that his upbringing was not surrounded by any dysfunction of any significance. There was no violence between his parents.
6. It is understood he was an average scholar who integrated effectively at school and in sport. There is no report of any childhood trauma or anxiety or any indication of any previous psychiatric disability.
7. He met his wife Rhonda when he was aged 29. That relationship has been an enduring one and there is no indication of marital breakdown, apart from some ongoing stressors which are related to Mr McNally’s present conditions.
8. He joined the RAN on 26 June 1974. He was discharged at his own request on 23 September 1998. His eligible defence service, persists for the whole of the above period and in addition, as provided by the respondent, he had operational or hazardous service for the periods as follows;
(a)Operational Service – Persian Gulf – 22 August 1990–14 December 1990.
(b)Hazardous Service – Persian Gulf – 4 June 1991–21 September 1991.
(c)Hazardous Service – Persian Gulf – 11 March 1992–16 July 1992.
9. The applicant was employed in the RAN as a cook. Upon discharge, he established a small business and utilised his skills as a chef. There is evidence that he was advised to give up work in 2000 because of severe dermatitis of his hands.
10.The applicant has the following service related disabilities :
(i)Bilateral sensorineural hearing loss;
(ii)Chondromalacia patellae of the left knee;
(iii)Chronic simple bronchitis;
(iv)Gastro-oesophageal reflux disease;
(v)Evulsion of left upper first incisor.
11. The following claims for disabilities have been determined as being non service related :
(vi) Otitis externa of both ears;
(vii) Endogenous dermatitis;
(viii) Adjustment disorder.
Issues
12. The Tribunal was asked to determine the following in this case:
(i)whether the applicant suffers a psychiatric disability of adjustment disorder;
(ii)whether the applicant suffers a psychiatric disability of generalised anxiety disorder;
(iii)whether the psychiatric disabilities suffered by the applicant are related to the applicant’s service in the RAN;
(iv)whether the applicant suffers contact dermatitis and whether the disability is related to service; and
(v)whether the applicant suffers the disability of endogenous dermatitis and whether that disability is service related.
Legislation
13. This appeal is made under the Veterans’ Entitlements Act 1986 (“the Act”). The Tribunal’s role is prescribed in s43 of The Administrative Appeals Tribunal Act 1975 and is to make a merits review of the original decision. This means that the Tribunal stands in the position of the original decision maker(s) and considers all evidence afresh, including more recent evidence, and must also apply all relevant statutory and case law (ReBantick and Secretary, Department of Family and Community Services[2003] AATA 472 at [23]).
14.The following provisions of the Act are also relevant:
“Section 5Q
(1A) In parts VIII, XI and XIA, unless the contrary intention appears”
Defence service has the same meaning as in Part IV.
Hazardous service, in relation to a member of the Forces, has the same meaning as in section 120.
Member of a Peacekeeping Force has the same meaning as in Part IV.
Member of the Forces has the same meaning as in Part IV.
Sect 7
Eligible war service
(1) Subject to subsection (2), for the purposes of this Act:
(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and
Sect 9
War-caused injuries or diseases
(1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if:
…
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
(e) the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
…
(2) For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service:
(a)if that incapacity was due to an accident—that incapacity shall be deemed to have arisen out of the injury suffered by the veteran as a result of the accident and the injury so suffered shall be deemed to be a war‑caused injury suffered by the veteran; or
(b)if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war‑caused disease contracted by the veteran.
Sect 70
(5) For the purposes of this Act, … an injury suffered by such a member shall be taken to be a defence‑caused injury or a disease contracted by such a member shall be taken to be a defence‑caused disease if:
(a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
(b)subject to subsection (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any defence service or peacekeeping service of the member but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty; or
(c)the death is to be deemed by subsection (6) to be defence‑caused, the injury is to be deemed by subsection (7) to be a defence‑caused injury or the disease is to be deemed by subsection (7) to be a defence‑caused disease, as the case may be; or
(d)the injury or disease from which the member died, or is incapacitated:
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
…
but not otherwise.
(5A) If this Part applies to a member of the Forces solely because the member has rendered hazardous service as specified in section 69A, the death of the member is taken to be defence‑caused, an injury suffered by such a member is taken to be a defence‑caused injury or a disease contracted by such a member is taken to be a defence‑caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, the hazardous service of the member; or
…”
Standard of Proof
15. In relation to operational service, the standard of proof required is as set out in s120(1) and s120(3) of the Act. Those provisions require the Tribunal determine that the veteran’s injury was war caused unless it is satisfied, to the standard of proof of a reasonable hypothesis, that there is no sufficient reason for making that finding. This means that the Tribunal must assess those claims using the standard of proof of beyond reasonable doubt.
16. The standard of proof required for hazardous service is the same as that for operational service outlined above. That requirement is set out in s120(3) of the Act and refers to s120(2)(b) where, unless the Commission is satisfied beyond reasonable doubt to the contrary, the injury or disease shall be determined to be “defence-caused” rather than “war caused”.
17. In relation to eligible defence service (that is service that is not operational service or hazardous service) the standard of proof is that of reasonable satisfaction. The authority for that requirement is set out in s120(4) of the Act. The standard to be applied in such a case is the balance of probabilities. (Benjamin v Repatriation Commission (2001) 70 ALD 622; and Fogarty v Repatriation Commission[2003] FCAFC 136).
18. Section 120A of the Act is also relevant to this matter. That requires that when a claim is lodged after 1 June 1994, the Tribunal must assess the reasonableness of a hypothesis in terms of any Statement of Principles which have been issued by Repatriation Medical Authority or any relevant determination or declarations under the Act. The following Statements of Principles (SoP) are relevant to the claims made by the applicant;
(i) SoP Nos 65 and 66 of 1997 (as amended by SoP Nos 23 and 24 of 2004) – Contact Dermatitis;
(ii)SoP Nos 57 and 58 of 1996 – Adjustment Disorder;
(iii)SoP Nos 1 and 2 of 2000 – Anxiety Disorder.
19. Considering these provisions and the evidence in this case, the Tribunal is obliged in reaching its decision, to have regard to any matter that the Tribunal thinks is appropriate (Re Cockcroft and Attorney General’s Department(No 2) (1987) 13 ALD at 623).
Evidence
20.The following documentary exhibits were admitted at the hearing:
Exhibit 1the T documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2photocopies of photographs submitted with the Haney Lawyers’ letter dated 3 March 2005 (plus original photograph)
Exhibit 3 statement of the applicant dated 22 February 2005
Exhibit 4 statement of the applicant dated 23 June 2005
Exhibit 5letter of the applicant dated 3 November 2005 in response to Dr Lewin’s medical report dated 24 August 2005
Exhibit 6 Statutory Declaration of Ray Lillimagi dated 21 September 2004
Exhibit 7Statutory Declaration of Paul Ronald Slater dated 7 September 2004
Exhibit 8 Statement by Dr Natasha Cook dated 3 July 2003
Exhibit 9Statement by Liam Guilfoyle, forensic psychologist, received in the Tribunal on 25 January 2006
Exhibit 10 Reports of Dr Karl Koller dated 12 May 2005 and 29 July 2003
Exhibit 11 Report by Dr Karl Koller dated 26 May 2005
Exhibit 12 Report by Dr Karl Koller dated 21 June 2005
Exhibit 13 Report by Dr Edmund Lobel dated 12 July 2005
Exhibit 14 Report by Dr Lewin dated 24 August 2005
Exhibit 15 Reports by Dr Lewin dated 30 November 2005
21. Oral evidence was given by the applicant, Barry McNally. Also, oral evidence was provided on behalf of the applicant by Roy Lillimagi, Paul Slater, Dr Karl Koller and Mr Liam Guilfoyle. Oral evidence was also provided on behalf of the respondent by Dr Edmund Lobel and Dr Robert Lewin.
22. The following evidence of witnesses was admitted at the hearing:
§ Barry McNally
23. The applicant was referred to Exhibits 2, 3, 4 and 5, including certain photographs. The applicant identified the photographs as being photographs of dead people that were handed to him by a Marine whilst on leave and serving in the Persian Gulf. The other photographs were of “Hell Highway”. The applicant identified that the latter group of photographs were ones taken by himself and other sailors.
24. In relation to his service in the Navy over 24 years, the applicant stated that he was employed as a chef and that he had had a number of cases of dermatitis throughout that service, many of which were not reported. He had this condition while serving in the Persian Gulf and stated that it was treated with moisturiser. At no time did he go to the sick bay while in the Persian Gulf.
25.He was handed the T documents and was referred to the following:
(i)Folio 12 – dermatitis of the arms and anal cleft – September 1976
(ii)Folio 13 – anal dermatitis – May 1976
(iii)Folio 14 – contact dermatitis of the hands – October 1978
(iv)Folio 15 – contact dermatitis – rash on the body and limbs for several weeks – 24 November 1981
The applicant reiterated he had other cases of dermatitis which were not reported and that he got a moisturiser to self treat the condition.
26. The applicant was shown sets of photographs which he stated were a significant cause of aggravation to his condition of dermatitis and anxiety. The first incident was on 28 June 1991 when on R & R leave in Bahrain the applicant went ashore in an organised group. The applicant stated that he went to the PX to get toiletries. There, he met a Marine who gave him copies of photographs to take back to the ship. He did not look at them in detail until back at the ship when he reported being “shocked” and that they were “sickening”. He felt very uncomfortable as a result. The applicant also stated that he did not think it had an impact on him at the time, but others said that he changed his behaviour following that event. By the time he returned to the Gulf on the third occasion, he wondered as to the effect that it had on him as his wife had also told him that his personality had changed. He was married in 1987 and had been married three years before he went to the Gulf.
27. The second incident occurred during the period 13 to 16 August 1991. The applicant was again on leave and visited what was known as “Hell’s Highway”. This was an organised tour by the ship’s co-ordinating officer. The applicant stated that he accompanied the others on this tour because everybody else was going. Two buses were following in tandem. At a checkpoint, the first bus was waved through and the second bus attempted to follow through the check point. A shot was fired to halt the second bus and the applicant saw an altercation between a guard and the driver of the bus. The applicant said he was talking at the time the incident happened but he was very scared.
28. At Hell’s Highway, they were given a tour of tanks, which he said he observed black marks on the floor of the tank which did not look like grease but looked like “dead blood”.
29. At the time of his discharge from the RAN, the applicant stated that his hands were “OK”. But throughout his Naval service and beyond, the dermatitis was sometimes under control and sometimes it was problematical.
30. After the Gulf War, he was anxious but did not seek help. He thought he merely had to deal with this himself even though he was “flying off the handle” and was suffering from poor sleep habits. He stated that this still existed until today. He noted that his wife also made comment that he had changed over the years and that by 1997, it was starting to get worse. He said he sought help only after he left the Navy. While he was in the Navy, he said that he avoided revealing psychological problems as he might be thought to be “a nut case”. As a chef on shift he was always busy and had to deal with it himself. He said the average sailor would not go and seek help in such circumstances.
31. Under cross-examination by Mr Williams, it was revealed that from 1976 to 1982, he had episodes of dermatitis of the arms and legs and anal dermatitis. This was between the ages of 19 to 25 (approximately). From 1982 the applicant mainly treated himself.
32. He admitted that he had dermatitis all over his body but dealt with it himself until he needed to go to a dermatologist. In 2000 he went to a dermatologist and was diagnosed with chronic hand dermatitis. He was advised that he should no longer work with this condition.
33. From 1982 until the time of his discharge form the RAN, the applicant said the symptoms were mostly on his hands. At one stage when he had burnt his foot with hot water, he had to go to the medical centre but said that he previously did not go to seek medical attention for his dermatitis as he had to wait a couple of hours most of the time for treatment.
34. In 1997, the annual medical report showed that he had no significant skin problems (Folio 11, Question 23). The applicant said he was probably told to say “no” if he did not have it on that particular day of the medical. The respondent’s advocate put to him that Items 3 and 21 of that report show that he reported hearing and knee problems which were minimal, but he did not report a 20 year history of dermatitis. This was in 1997.
35. In referring to the appointment with Dr Lewin, it was noted that the Doctor thought he had had an anxiety condition for five years. He said it was a psychiatric symptom of recent origin and possibly an adjustment disorder. The applicant told the Tribunal that he did not think a psychiatrist could diagnose anything in a one and a half hour appointment and said that he did not mention his service in the Gulf to Dr Lewin. When asked “why”, he said that he told Dr Lewin only what he had to tell him. He denied that he intentionally withheld information, but commented that he did not open up to somebody he had only just met.
36. The applicant’s claim form submitted in 2001 was also referred to him. It was noted that in relation to a claimed disability for anxiety and depression, the applicant stated that he first became aware of these symptoms in 1978 (Exhibit 1, Folio 199). However, in re-examination by his Counsel, the applicant said these symptoms related only to the hand dermatitis.
37. When asked why he went on a bus trip in the month following the incident where he received the disturbing photographs, the applicant said “It was like a ship’s requirement to go and have a look”.
§ Mr Roy Lillimagi
38. The witness agreed that his Statutory Declaration (Exhibit 5) was true and correct. He was employed also as a cook in the RAN. He remembered the organised tour of Hell’s Highway. He referred to the incident where two buses were passing a check point, with one bus being let through and the bus he was on following through, when a shot was fired. He corroborated that a guard boarded the bus and abused the driver for not stopping. The witness said “it was terrifying for all of us”.
39. Under cross-examination by Mr Williams, about that incident Mr Lillimagi said there were no windows shattered as far as he could recall. He said the guard who came on board was uniformed and armed.
40. Mr Lillimagi recalled going to a compound where they saw a lot of tanks. It looked like the tanks were ready for action. He recalled a change in the applicant’s personality after these visits and said while he was usually outspoken and jovial, the applicant became withdrawn after the gunshot incident. Mr Lillimagi seemed to have some difficulty recalling the detail of what occurred after that but said that the tour was supervised by senior officers on board the bus. It was designed as a tour of the compound and the tour lasted for a day. The particular incident occurred at the start of that day. In relation to joining the tour, the witness said it was organised and arranged by the ship and sailors could put their name down to go and if they could be released and wanted to go, then they could join the tour. If not, they remained on board.
41. Mr Lillimagi recalled seeing photographs and said he had seen a photograph of a dead body. At Hell’s Highway, he did not personally see dead bodies.
§ Mr Paul Slater
42. Mr Slater recalled the incident regarding a shot being fired at a checkpoint. He corroborated the applicant’s evidence in that regard.
43. In relation to photographs which included parts of bodies, the witness said he did not see them himself although he recalled other people saying they did see the photographs.
44. Under cross-examination, the witness said he did three trips to the Persian Gulf in 18 months. These were after the hostilities had ceased, but were still escorting ships into Kuwait.
45. He had seen the photographs of Mr McNally and others where they were dressed in civilian clothing. It was a bus tour when they were on leave and not on duty. He stated that if sailors did not want to go on the bus trip, they could stay on board. He did not sign up to go on the trip.
§ Dr Davies
46. A report by Dr Davies was produced dated 1 June 2002. He noted the applicant had a history of dermatitis both in the Navy and subsequent to discharge. The applicant presented with a history of depression and anxiety secondary to the effect of dermatitis.
47. He recorded details of the applicant’s service in the Gulf War and his shore leave where the applicant reported seeing scenes of destruction. Otherwise, nothing remarkable was reported. Dr Davies diagnosed Mr McNally as having an adjustment disorder at that time.
§ Dr Karl Koller
48. Dr Koller diagnosed the applicant as having generalised anxiety disorder. He considered from the history that was given to him that its onset occurred in the Middle East while the applicant served in the Navy. He thought Mr McNally had suffered from this for a number of years. In his report dated 26 May 2003 he referred also to the dermatitis condition and said this was a barometer of his anxiety. This evidence was consistent with his report dated 12 May 2005. Dr Koller was also referred to his report dated 29 July 2003 and 26 May 2005. The applicant told Dr Koller that he saw photographs of “body parts” and in Kuwait he saw “smashed vehicles and tanks”. He told Dr Koller “it was only seconds but this has lasted a long time mentally, even writing about this has given me a scratching attack”. Dr Koller also re-emphasised the relationship between his anxiety and depression and the chronicity of the dermatitis in his hands. In relation to Dr Koller’s report dated 21 June 2005 (Exhibit 12) he referred to HMAS Darwin firing on cargo ships when they refused to be inspected. Dr Koller reported that HMAS Darwin was not fired upon in return.
49. Whilst being cross-examined, Dr Koller said he did not know whether the applicant was in combat and that he was aware that a shot was fired at a checkpoint. He did not know any circumstances of deaths (if any) witnessed by the applicant. Dr Koller became a little agitated under cross-examination and said that it may not be relevant whether he had been in combat or seen dead bodies. Dr Koller maintained he had tried to tell the Department of Veterans’ Affairs for some time that the SoPs were not comprehensive. He said the questions being put to him were “leading in the wrong direction”. He thought the SoPs “do not go far enough”. He further stated “if I was there, I would be terrified”. This was referring to oil wells burning in the distance and that there might be a threat of being blown up.
50. In relation to the applicant’s condition, Dr Koller thought he had generalised anxiety disorder because of continuing anxiety and dermatitis, of which the latter increases when he becomes anxious.
51. Under re-examination by Ms Carter-Nicol, Dr Koller said these conditions can be “cumulative”. Dr Koller said he experienced it once himself and said that this was a different situation to walking around Sydney. He questioned “why wouldn’t this man be frightened of Saddam Hussein?” He said the anxiety condition leads to an outbreak of dermatitis in the applicant.
§ Dr Edmund Lobel
52. Dr Lobel is a dermatologist. He saw the applicant in October 2000 when he had chronic scaling and dermatitis on the palms of his hands and/or fingers, and extending to the sides of his fingers. He made a provisional diagnosis of allergic contact dermatitis.
53. Following patch testing, he found that the applicant was not allergic to rubber and as a result made a final diagnosis of endogenous or constitutional hand dermatitis. He thought this was due to his work as a chef. He said he could not identify any particular chemical as a cause but rubber gloves (and sweating in gloves) are known to cause dermatitis. Also, cutting certain fruits would aggravate his dermatitis.
54. In the testing which Dr Lobel carried out, he said there were 24 allergens in a standard series of tests to determine whether the applicant was allergic to specific allergens. He said these were negative.
55. When asked whether there was a link between dermatitis the applicant experienced in his Naval service compared with that in his civilian occupation, Dr Lobel said he thought the applicant had a genetic susceptibility to dermatitis.
56. Under cross-examination by Ms Carter-Nicol, Dr Lobel said that for somebody with endogenous dermatitis, if there is also a psychiatric condition, then it is highly likely that his hands will flare up.
57. He thought that the diagnosis of contact dermatitis in the Navy was wrong. In his opinion, that it probably was contact dermatitis but that the applicant has endogenous dermatitis which triggers the contact dermatitis i.e. there is a higher level of susceptibility to dermatitis and as the applicant has this endogenous factor, he will then be likely to suffer contact dermatitis more quickly.
58. Dr Lobel was asked by the applicant’s Counsel why, if there was a genetic susceptibility to dermatitis, that the applicant had not experienced it prior to joining the Navy. Dr Lobel said that this was probably because there was not a sufficient stimulus to develop it prior to that time. There was a need for an environmental factor to develop it. In any case, he said most people know what to do when they have dermatitis and there is not necessarily a need to see a doctor.
§ Dr Natasha Cook
59. Dr Cook is a dermatologist from Sydney and examined the applicant and produced a report on 3 July 2003. She diagnosed him with endogenous hand eczema. She noted that the management of his underlying anxiety condition and stress would be most helpful in improving his problem.
§ Dr Robert Lewin
60. Dr Lewin provided a report dated 24 August 2005 (Exhibit 14). That report shows the applicant presented with a history of trauma in Bahrain in 1990. the incidents involved were that a US Marine gave the applicant 30 or more photographs. The Marine was a complete stranger to him at the time as he met him in a bar. He saw a photograph of dead bodies, tanks and “dead Iraqis”. He spoke of “wrecked tanks and to what he believed to be a headless body”. He told me that one of the photographs was of a “mutilated tank.”
61. When asked how he initially responded to the photographs, the applicant told Dr Lewin “not much at first”. He looked at them and put them away but examined them in more detail later. He then said “they were shocking”. He reported being distressed at seeing images of body parts in the photographs on subsequent examination.
62. The applicant also spoke of going ashore in Kuwait where he went on a organised tour by bus. He said there was no guide or escort on the bus. At a checkpoint there were two buses, the first one was allowed through while the second one was stopped following two shots fired by an armed guard. The applicant had said he was scared as a result although nobody was injured. He also said he was scared for an instant – “it only lasted a second. After the shots were fired, everyone calmed down.”
63. Dr Lewin also discussed the findings of the historian in relation to this incident with Mr McNally. Mr McNally strongly disputed the historian’s version of events and said “they’re covering their arses. We will take it to court. There were two shots fired.” He reported no other critical incidents.
64. Dr Lewin referred to the applicant describing himself as being fidgety and having depressive symptoms. This has resulted in sexual dysfunction, mood disorders but no other significant psychiatric characteristics. The applicant has not held a driver’s licence since 1980 and said he did not have a need to drive as his wife does so. He also has chronic deafness but is resistant to wearing a hearing aid. He also suffers arthritis of the knee and bronchitis.
65. In relation to the two incidents described by the applicant, Dr Lewin said that he does not satisfy the diagnostic criteria for Post Traumatic Stress Disorder. In relation to the photographs which he received from the US Marine, Dr Lewin said this does not satisfy the stressor criterion for two reasons:
“Firstly, the quality of the stressor is somewhat different from the actual experience, participating in combat, or being confronted by trauma. Most people who watch television or go to the movie theatre would experience thousands of episodes of a similar degree of intrusiveness. Mr McNally did not describe the characteristic experience of horror or related intense emotional reaction as a direct response to the experience.”
66. In relation to the second incident in Kuwait, Dr Lewin thought that the applicant’s account was “an experience of alarm which settled rapidly”.
67. Dr Lewin further continued “based upon Mr McNally’s account, I consider it most unlikely that he experienced a severe stressor as defined in the Statement of Principles. He does not report persistent symptoms and I did not diagnose post traumatic stress disorder”. However, he went on to say that there were some features of Mr McNally’s presentation which is characteristic of generalised anxiety disorder. He thought at the time that he saw him, those symptoms did not formally reach the threshold of severity for the diagnosis to be made of generalised anxiety disorder. However, he did say that it was possible that Mr McNally had had the condition of generalised anxiety disorder at a previous time.
68. Dr Lewin concluded that as the applicant had not reported experiencing any symptoms prior to five years before his report, i.e. in the year 2000, it is possible that the applicant experienced an adjustment disorder, as a secondary response to dermatitis.
§ Liam Guilfoyle
69. Liam Guilfoyle is a forensic psychologist. His report dated 3 April 2002 diagnosed Mr McNally with an adjustment disorder; generalised anxiety disorder with panic attacks, and a skin condition as a consequence of stress.
70. Mr Guilfoyle stated that he had also spoken to the applicant’s wife who confirmed that he had changed some personality characteristics since his return from the Gulf War. He was now withdrawn, angry and irritable and cannot work. The applicant’s wife works to support the applicant and their child.
71. Mr Guilfoyle referred to the applicant’s account of Hell’s Highway and the photographs referred to by other witnesses. He stated that Mr McNally had flashbacks and dreams. His wife thought that these occurred immediately after coming back from the Gulf War.
72. The applicant reported to Mr Guilfoyle that since 26 May 2001, he has had constant pain since that time. This relates to problems with his knee which needs attention as he cannot move around easily. He thought there was some co-morbidity with this condition together with anxiety and the stress condition.
73. Under cross-examination, he was asked why he would have a different diagnosis to Dr Lewin or Dr Koller. The witness responded that his opinions might be different because he has a different method of working and analysing the problem presented.
74. In re-examination by Ms Carter-Nicol, Mr Guilfoyle stated that he administered psychometric testing. He also undertook cognitive behaviour therapy with the applicant which is more in the domain of psychologists than psychiatrists.
Submissions
75. Written and oral submissions were made by the advocate for the respondent. Leave was granted to Counsel for the applicant to make further written submissions, particularly in relation to hazardous service. These were received in the Tribunal on 23 February 2006.
CONSIDERATION
76. All of the oral and documentary evidence which has been presented including the written submissions, together with the statutory and case law, has been considered in formulating a determination in this matter.
Findings of Fact
77.The following findings of fact are made:
(i)The applicant, Barry McNally, was born on 14 March 1957. He subsequently served with the RAN from 26 June 1974 to 23 July 1998.
(ii)The applicant served in the RAN as a cook.
(iii)The applicant’s service was all “eligible defence service” except for the following:
§ Operational service 22 August 1990 to 12 December 1990;
§ Hazardous service 4 June 1991 to 21 September 1991;
§ Hazardous service 11 March 1991 to 16 July 1992.
(iv)The applicant has the following service related disabilities:
§ Bilateral sensorineural hearing loss
§ Chondromalacia patellae of the left knee
§ Chronic simple bronchitis
§ Gastro-oesophageal reflux disease
§ Evulsion of left upper first incisor
(v)The applicant received photographs from a US Marine in Bahrain in 1991, some of which depicted bodies as a result of the Gulf War.
(vi)The applicant attended an organised tour of “Hell’s Highway” in Kuwait. There, he was on a bus where at least one warning shot and possibly two warning shots were fired by a guard at a checkpoint to halt the bus on which the applicant and other members of his ship were travelling.
(vii)The applicant suffers from endogenous dermatitis. As a consequence, he also suffers from contact dermatitis from time to time.
(viii)The applicant suffers co-morbid symptoms of generalised anxiety disorder. The generalised anxiety disorder is related to knee pain and his endogenous dermatitis as well as secondary contact dermatitis.
Diagnosis
78. For a hypothesis to be articulated or for an alleged condition to be considered, the injury, illness or disease must be particularised, conceptualised or defined. The finding as to a diagnosis is upon the balance of probabilities.
Dermatitis
79. Dr John Marshall, Consultant Physician Internal Medicine and Allergy, in his report dated 20 June 2000 stated that “he could not provide a causative diagnosis” to the applicant’s severe hand dermatitis. However, a subsequent sequential pattern of testing and further elaboration by Dr Lobel in his evidence indicates a diagnosis of endogenous (or constitutional) hand dermatitis is appropriate. It appears endogenous dermatitis has a genetic basis and that contact hand dermatitis has been triggered in the past in the applicant because of his susceptibility to dermatitis. That is, because of endogenous factors, he is more prone to contact dermatitis.
80. A similar diagnosis was supported by independent assessment by Dr Natasha Cook. She also said it was important to deal with this condition as it affected Mr McNally’s anxiety condition.
81. The Tribunal accepts the opinion of Dr Lobel based on his extensive testing and reports, that the applicant has primarily endogenous dermatitis and as a consequence, hand dermatitis.
Psychiatric Diagnosis
82. In June 2002, Dr Davies diagnosed an adjustment disorder. An adjustment disorder was also diagnosed by psychologist, Mr Liam Guilfoyle, in 2005 and 2006. The question of what adjustment he was making in 2005 and 2006 is open to conjecture, as he was discharged from the RAN in 1998 and ceased work in 2000. In DSM-IV – TR at page 679 adjustment disorder is said to be expected to be resolved within six months, although it can last longer where it is in response to a chronic stressor e.g. a medical condition. This could certainly be so with the applicant in this case. However, as a differential diagnosis, adjustment disorder is a “residual” category and should be used only where the symptoms do not meet another specific Axis 1 Disorder (see page 681 to 682 of DSM-IV - TR).
83. In relation to other diagnoses, Dr Koller diagnosed Mr McNally as having generalised anxiety disorder. Dr Lewin, in August 2005, said that the applicant had some features of generalised anxiety disorder but did not at that time reach the threshold for the diagnosis. However, he went on to say that it was possible that he may have had the disorder at some previous time.
84. Mr Liam Guilfoyle also diagnosed the applicant with generalised anxiety disorder in his report in 2002 and again in his report in 2006. He tested the applicant using a number of psychometric instruments – the Beck Depression Inventory; the Pain Patient Profile; the DASS 42. These are either standardised tests or regarded as having a degree of efficacy as measuring instruments and are based on self scoring instruments by the applicant. They are more comprehensive in some respects and more recent. Also, the applicant has been consulting with Mr Guilfoyle for a considerable period and some weight must be given to his assessment of Mr McNally. While he might be regarded as having some “treating practitioner bias”, the Tribunal noted that his opinions are based on confirmatory interviews with Mrs McNally. He concluded that the applicant was suffering from generalised anxiety disorder and attributed this to knee pain as well as both pain and psychological symptoms resulting from his dermatitis condition. It is noted that the applicant has a knee condition that is already recognised as defence related.
85. Based on the assessments of Dr Koller, the opinion of Dr Lewis and the assessment of Mr Guilfoyle, the Tribunal determines that the applicant is suffering from generalised anxiety disorder.
Clinical Onset
86. To determine clinical onset, there must be a causal link between the disease claimed and the applicant’s Naval service. In Lees v Repatriation Commission (2002) 125 FCR 331 at paragraph 16, the Full Court of the Federal Court held that “clinical onset” requires symptoms which are evident to a doctor and there must be sufficient proximity between when the signs of the disease were first manifested together with the applicant’s operational or hazardous service or defence service. In other words, there must be evidence to support or demonstrate a close or apparent relationship between the onset of the disease and the psycho-social stressors claimed.
87. In relation to the diagnosis of endogenous dermatitis and contact dermatitis, endogenous dermatitis has a genetic basis. However, evidence shows that contact dermatitis requires certain environmental factors for it to be activated. In that regard, the applicant’s medical records show dermatitis being reported in May 1976 (anal dermatitis), in September 1976 (dermatitis of the arms and anal cleft), in 1978 (contact dermatitis) and again in 1981 (dermatitis of the body and limbs). There is further evidence by the applicant that there were many other cases of dermatitis which he did not report. Therefore, it would seem that the onset of his contact dermatitis was in the mid 1970s while he was performing eligible defence service. The fact that this condition may subside and recur, and there is evidence also which was undisputed that he also suffered this condition while he served with the RAN in the Persian Gulf, the Tribunal accepts that he also had onset of dermatitis whilst undertaking hazardous service in 1991 and/or 1992.
88. In relation to generalised anxiety disorder, Dr Koller stated that based on his consultation with the applicant, onset of this condition would be within two years of his Gulf War service. Liam Guilfoyle, psychologist, also commented in his 2006 report that the applicant’s condition commenced after his visit to Hell’s Highway. On the other hand, Dr Lewin stated that the applicant told him that these symptoms commenced five years before his report in 2005. That would place onset at approximately 2000, almost a decade after his first service in the Persian Gulf. The Tribunal noted also that Mr Guilfoyle reported in 2006 that apart from his conclusion that the applicant’s generalised anxiety disorder was linked to his military service, he stated that this condition was “…a consequence of a left knee injury was made worse by his exposure to a number of horrible and distressing incidents and exposure to a large number of partially decomposed body parts that would be distressing to almost any human being”.
89. The Tribunal found Dr Lewin’s evidence to be more convincing than that of Dr Koller and his evidence that the applicant had indicated onset was in about the year 2000 is convincing. That together with Mr Guilfoyle’s report that the anxiety condition is a consequence of a left knee injury (which is an accepted condition by the Repatriation Commission) and which had been aggravated by distressing incidents, together with reliance on Mr Guilfoyle’s diagnosis from separate interviews with Mr McNally’s wife, leaves the Tribunal to conclude that clinical onset of generalised anxiety disorder occurred during the Gulf War service.
Assessment
§ Endogenous Dermatitis and Secondary Contact Dermatitis
90. There is no Statement of Principles relevant to this condition. The assessment is therefore made on the balance of probabilities. The specialist medical evidence in relation to endogenous dermatitis is respectable and is uncontradicted. It is clear also that contact dermatitis and perhaps other dermatological conditions have been suffered by the applicant certainly from the early stages of his eligible defence service. The evidence of Dr Lobel that the applicant has endogenous dermatitis and contact dermatitis, which is aggravated by environmental factors (and which his occupation as a cook would clearly place him in a high risk category), the Tribunal accepts that on the balance of probabilities the applicant has suffered contact dermatitis during his eligible defence service. The independent opinion of Dr Natasha Cook is also confirmatory and she refers to an inter-relationship between the dermatitis condition and anxiety. It is however accepted that the applicant’s dermatitis condition has also occurred during his hazardous service, although this clearly did not occur for the first time during hazardous service. It is accepted that it was aggravated by his hazardous service.
§ Generalised Anxiety Disorder
91. In assessing this condition, the only relevant Statement of Principles is No 1 of 2000 (Generalised Anxiety Disorder). The applicable factors in this case have been submitted by Counsel for the applicant as being factor 5(a)(ii) – “experiencing a severe psychosocial stressor within two years immediately before the clinical onset of anxiety disorder”. I agree that that is the relevant factor in this case. That also requires consideration of the term “experiencing a severe stressor”, which is included in the definitions of paragraph 8 of the SoP. That definition reads as follows:
“Severe psychological stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, e.g. being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.”
92. In undertaking this assessment, a preliminary assessment is also required to determine whether the veteran has, in fact, rendered operational service or hazardous service and whether the injury, disease or death claimed exists. In this case Mr McNally is a veteran (based on independent evidence); and there is ample evidence of his dermatological and anxiety condition (Repatriation Commission v Hancock [2003] FCA 711; and Mines v Repatriation Commission [2004] FCA 1331).
93. To determine whether the applicant’s condition of generalised anxiety disorder satisfies SoP No 1 of 2000 and whether it is “war caused”, the four steps set out in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206 must be assessed. These steps are:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
94. In step 1 of Deledio there must be a hypothesis which connects the applicant’s condition of generalised anxiety disorder with facts relating to his Naval service. This hypothesis is, at this stage, based on conjecture (Repatriation Commission v Stares (1996) 41 ALD 212 at 217).
95. In formulating an hypothesis, the Tribunal must consider all of the material (Bushell v Repatriation Commission (1992) 175 CLR 408; and Byrnes v Repatriation Commission (1993) 177 CLR 564).
96. For the purposes of step 1 of Deledio, an hypothesis can be satisfactorily made out.
97. In relation to step 2 of Deledio, a SoP exists for the condition of generalised anxiety disorder. The relevant Instrument is No 1 of 2000.
98. Step 3 of Deledio requires an assessment of whether the hypothesis in step 1 is a reasonable one. To be a reasonable hypothesis, there must be more than an existence of mere possibility. The explanatory memorandum to the Act explains the intention of the legislation, being that a pension will only be payable where the evidence provides “…some positive inference in favour of a connection between the injury, disease or death in the veteran’s or member’s particular service”.
99. In Byrnes at 571, the High Court outlined how step 3 should be assessed:
“The position may be summarized as follows: (1) First, sub-s. (3) of s.120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s. (1) of s. 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.” [Emphasis added]
100. Determining whether the hypothesis is reasonable, the material presented must fit the template of the SoP for Anxiety Disorder. In other words, the material must point to the applicant experiencing “a severe psychosocial stressor” as defined above during the applicant’s hazardous service (Repatriation Commission v Hill [2002] FCAFC 192 at paragraph 67). This approach has been adopted by the Tribunal in assessing the reasonableness of this hypothesis.
101. This third step in the Deledio process involves the Tribunal making a macro level assessment of the applicant’s version of events by comparing it with the template provided in the SoP. It must be “…more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities” (East v Repatriation Commission (1987) 16 FCR 517 at 532 – 533).
102. Viewed pragmatically, the evidence must “point to” or “support” the hypothesis and not merely be “left open” on the evidence as a possibility (Gilbert v Repatriation Commission (1989) 86 ALR 713; and Repatriation Commission v Bey (1997) 79 FCR 364). The High Court of Australia said for there to be a reasonable hypothesis, there must be “…sufficient factual material to point to a reasonable hypothesis connecting the injury etc with the operational service” (Bushell). Importantly, the fundamental question is whether the incidents raised by the applicant can be said to be “severe psychosocial stressors” as defined in the SoP.
103. The applicant’s Counsel has referred the Tribunal to White v Repatriation Commission [2004] FCA 633 where Spender J said that “a severe psychosocial stressor” contains both objective and subjective elements.
104. Counsel also referred to the explanation in that judgment as to what is objective. “An identifiable occurrence” was said to be objective and that the examples given in the SoP were examples of the kinds of “identifiable occurrence” intended by the definition.
105. Counsel also referred the Tribunal to the subjective elements of the definition (Repatriation Commission v Stoddart (2003) 38 AAR 176). It was submitted that “an identifiable occurrence ‘that evokes feelings of substantial distress in an individual’ also has a subjective element: see Woodward v Repatriation Commission (2003) 200 ALR 332 at 352 per Black J, Weinberg and Selway JJ….”
106. A severe psychosocial stressor must involve a stressor which results in “substantial distress”. That is the level of severity which the stressor must be measured against, is the standard or “bench mark” which is reflected in the examples given in the definition. But that level of distress must be of a psychosocial nature, that is, that the person’s sense of psychological equilibrium would be unbalanced because of a feeling of threat to their normal enjoyment of life or even their very existence. A person’s cognitive and/or behavioural pattern for continued effective integration with their family and society at large would be affected by the “identifiable occurrence” or incident raised by an applicant.
107. Also, the assessment of the ”identifiable occurrence” must involve a comparison of the objective standards (the examples in the definition) with the subjective element (the incident raised by the applicant).
108. In this case, the applicant submits that the “severe psychosocial stressors” were the photographs received from the US Marine, including images of dead bodies, and a tour of Hell’s Highway. “Experiencing” a severe psychosocial stressor in the applicant’s case involved the tour of Hell’s Highway, including two warning shots being fired and observation of what he perceived as dried blood in armoured tanks. In considering these incidents, the applicant originally indicated that the dark stains in the tanks at first looked like grease. However, he subsequently thought it may be dried blood. The applicant’s case is therefore that the subjective element is satisfied by the above. The question is then whether the objective element, as required in White’s case, is also satisfied. While the Tribunal did not adopt Dr Lewin’s final diagnosis, his observations, analysis and report of the applicant’s hypothesis is instructive. In relation to the photographs received from a Marine in Bahrain, Dr Lewin stated:
“Initially he had no particular response. Later he examined the photographs in more detail aboard his own vessel. Mr McNally recalled that he felt ‘shocked’ and upset. He did not experience enduring symptoms and he did not report any alteration in regard to his functioning at that time. Mr McNally did not experience impairment with regard to his capacity to work. He continued in his usual duties.”
109. In relation to the incident in Kuwait where the applicant was part of an organised bus trip with other servicemen from HMAS Darwin, Dr Lewin refers to the hearing of two shots. He stated that “he was initially alarmed and distressed”. This was associated with some other symptoms over a period of several weeks. After that his symptoms settled. Mr McNally reported that he next experienced symptoms about four or five years ago. He described the onset of some intermittent symptoms, including feeling:
“keyed up, nervous, fidgety and angry. Over the same period of time he has avoided busy or crowded places and he has noted some tendency to worry. He has felt frustrated with regard to his dermatitis. He has not experienced typical morbid depressive symptoms. Although he avoids crowded places, he sometimes visits the RSL Club or goes out to dinner with his wife. He told me that his wife takes him out for dinner once every few months. He feels uncomfortable in noisy, crowded place but he is able to go there with some degree of effort. Mr McNally appears to have avoided driving, at least, since 1980.”
110. Dr Lewin also commented in relation to the first incident pertaining to photographs, that the images of war scenes in photographs would not satisfy the stressor criterion for post traumatic stress disorder specifically. He said:
“Firstly, the quality of the stressor is somewhat distant from the actual experience, participating in combat, or being confronted by trauma. Most people who watch television or go to the movie theatre will experience thousands of episodes of a similar degree of intrusiveness. Mr McNally did not describe the characteristic experience of horror or related intense emotional reaction as a direct response to the experience.”
111. In relation to the second incident Dr Lewin stated that Mr McNally’s response was, “by his account, an experience of alarm which settled rapidly. Mr McNally was not injured and he did not see anyone harmed at close quarters. I consider that this stressor did not satisfy the criteria with respect to a severe stressor at any stage”. The Tribunal prefers the assessment of Dr Lewin to that of Dr Koller or Mr Guilfoyle, who have been the applicant’s practitioners. Dr Lewin’s report appears more objective and analytical. Therefore the applicant does not satisfy the objective element to demonstrate that the incidents put forward are “severe psychosocial stressors” as defined. Therefore, the applicant does not raise a reasonable hypothesis that the condition of generalised anxiety disorder is war caused.
112. In the circumstances therefore the Tribunal answers the questions for determination as follows:
1.Does the applicant suffer the psychiatric disability of adjustment disorder?
Answer: No
2.Does the applicant suffer the psychiatric disability of generalised anxiety disorder?
Answer: Yes
3.Does the psychiatric disability suffered by the applicant relate to the applicant’s service?
Answer: No
4.Does the applicant suffer contact dermatitis and is that disability related to service?
Answer: Yes, the condition relates to eligible defence service and hazardous service.
5.Does the applicant suffer the disability of endogenous dermatitis and is that disability service related?
Answer: Yes. The applicant suffers endogenous (constitutional) dermatitis which is service related as environmental factors from his eligible defence service and hazardous service activated this condition (and the consequential condition of contact dermatitis).
113. In the circumstances the decision under review is set aside and is remitted to the respondent for reassessment of entitlements to pension and/or treatment for the applicant in accordance with this decision.
I certify that the 113 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy
Signed: .Robert Hayes, Associate
Date of Hearing 10 February 2006
Date of Decision 8 May 2006
For the Applicant Ms B Carter-Nicol, of Counsel
Instructed by Haney Lawyers
For the Respondent Mr B Williams, Department Advocate
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