Odgers and Repatriation Commission (Veterans' entitlements)
[2020] AATA 1655
•9 June 2020
Odgers and Repatriation Commission (Veterans' entitlements) [2020] AATA 1655 (9 June 2020)
Division:VETERANS’ APPEALS DIVISION
File Number: 2015/6688
Re:Aaron Odgers
APPLICANT
Repatriation CommissionAnd
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:9 June 2020
Place:Brisbane
I set aside the decision under review and substitute a decision that the persistent depressive disorder (which includes the condition previously known as dysthymia) of the veteran was defence-caused and that he is entitled to a pension is payable in respect of that condition. The application is remitted to the respondent for assessment of the rate of pension payable. I have determined that the date of effect of this decision is 17 September 2013 which is the date when the veteran lodged his claim.
........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements Act 1986 (Cth) – claim for disease related to service – persistent depressive disorder (dysthymia), major depressive episode with anxious distress, and alcohol use disorder – whether disease related to defence service – Statement of Principles concerning depressive disorder (No. 84 of 2015) (Cth) – having alcohol use disorder at the time of theclinical worsening of depressive disorder – decision under review remitted for reconsideration for assessment of pension
LEGISLATION
Statement of Principles concerning alcohol use disorder (Reasonable Hypothesis) (No. 48 of 2017) (Cth)
Statement of Principles concerning alcohol use disorder (Balance of Probabilities) (No. 49 of 2017) (Cth)
Statement of Principles concerning depressive disorder (No. 28 of 2008) (Cth)
Statement of Principles concerning depressive disorder (No. 41 of 2010) (Cth)
Statement of Principles concerning depressive disorder (No. 83 of 2015) (Cth)
Statement of Principles concerning depressive disorder (No. 84 of 2015) (Cth)
Veterans’ Entitlements Act 1986 (Cth)CASES
Dyce and Repatriation Commission [2010] AATA 956
Repatriation Commission v Bawden (2012) 206 FCR 296; [2012] FCAFC 176
Repatriation Commission v Milenz (2006) 93 ALD 107; [2006] FCA 1436
Repatriation Commission v Yates (1995) 38 ALD 80REASONS FOR DECISION
Deputy President Dr P McDermott RFD
9 June 2020
BACKGROUND
On 17 December 2013, Mr Aaron Odgers (‘the veteran’) lodged a claim form with the Repatriation Commission (‘the respondent’) for “disabilities that have not yet been accepted as service related”.[1] The veteran listed “Anxiety & Depression” as the disability being claimed in the form. In the claim form, the veteran indicated that he believed his disability was “caused, contributed to, or aggravated” by “Service in the Gulf War. Service Dealing with illegal immigrants. Pain from service related injuries.”.
[1] Exhibit A, T-Documents, T4.
On 20 November 2014 the respondent made a decision that the conditions of “Dysthymia” and “Alcohol harmful abuse” were not related to the veteran’s service and found that there was “no medical condition present to answer” for the condition of “anxiety disorder”.[2]
[2] Exhibit A, T-Documents, T10.
On 19 February 2015 the veteran lodged an application for review of the respondent’s decision to the Veterans’ Review Board (‘VRB’).
On 7 September 2015 the VRB was not satisfied that there was a diagnosis of an alcohol condition and varied the respondent’s decision to find that there was no alcohol condition present to answer for and otherwise affirmed the decision.
On 21 December 2015 the veteran lodged an application with this Tribunal for review of the decision of the VRB.
The records held by the Department of Veterans’ Affairs (‘DVA’) show that the veteran has a number of claims accepted under the Act.[3] The veteran has been in receipt of a disability pension at 90 percent of the General Rate effective from 3 November 2011.
[3] Exhibit A, T-Documents.
THE VETERAN’S SERVICE
The decision under review states that the veteran served in the Royal Australian Navy (‘the Navy’) from 12 June 1987 to 6 April 1994.[4] I note that the documents provided, particularly the veteran’s service medical records from the Department of Defence, indicate that the veteran continued to serve in the Navy until he was discharged on 13 August 2007.[5] The veteran rendered eligible “defence service” under the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’) from 12 June 1987 to 19 November 1990 and from 20 April 1991 to 6 April 1994.[6] The veteran rendered eligible operational service under the Act from 20 November 1990 to 19 April 1991 in the Persian Gulf.[7]
LEGISLATIVE FRAMEWORK
[4] Exhibit A, T-Documents, T2, B3.
[5] Exhibit I, p. 363.
[6] Veterans’ Entitlements Act 1986 (Cth) ss 5Q(1), ss 68(1).
[7] Veterans’ Entitlements Act 1986 (Cth) ss 5Q(1), ss 6 and 6F.
War-caused injury or disease
Subsection 13(1) of the Act provides that where a veteran is incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
Section 9(1)(a) of the Act provides that an injury or disease shall be taken to be war-caused if the injury suffered or disease contracted by the veteran resulted from an occurrence that happened while the veteran was rendering operational service.
Section 9(1)(b) provides that an injury suffered or disease contracted by a veteran shall be taken to be war-caused if the injury or disease arose out of, or was attributable to, any eligible war service rendered by the veteran.
Section 7(1)(a) provides that a person who has rendered operation service shall be taken to have been rendering eligible war service while the person was rendering operational service.
A claim that an injury or disease is war-caused is to be determined in accordance with the standard of proof outlined in subsections 120(1), 120(3) and section 120A of the Act. Subsection 120(1) of the Act provides that where a claim for a pension:
(1)…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.
Subsection 120(3) of the Act also provides:
(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.
Section 120A sets out how a hypothesis must be assessed:
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran…
Defence-caused injury or disease
A claim relating to an injury or disease relating to a veteran’s defence service is determined in accordance with part IV, subsection 120(4), and section 120B of the Act.
The determination of whether the veteran’s injury or disease is defence-caused in relation to his defence service is to be made by applying the standard of proof outlined in subsection 120(4) of the Act. Subsection 120(4) requires this Tribunal to decide the matter to its ‘reasonable satisfaction’.
Subsection 120B(3) of the Act provides how ‘reasonable satisfaction’ is to be assessed:
(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.
STATEMENTS OF PRINCIPLES
Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (‘RMA’) which is an independent medical body that issues Statements of Principles (‘SoP’s) based on sound medical-scientific evidence. The SoPs set out factors relating to service which must exist in order to establish a causal connection between service and particular diseases, injuries or death.
As to a claim relating to operational service, subsection 196B(2) of the Act provides that if the RMA:
… is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans;…
the [RMA] must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
As to a claim relating to defence service, subsection 196B(3) of the Act provides that if the RMA:
(3)… is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a)eligible war service (other than operational service) rendered by veterans; …
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c)the factors that must exist; and
(d)which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service ...
A SoP is binding on the respondent and various review bodies, including this Tribunal, and is a legislative instrument.
Of the SoPs that have been identified as relevant in this matter, those which are applicable to operational service are:
(a)Statement of Principles concerning depressive disorder (No. 83 of 2015) (Cth); and
(b)Statement of Principles concerning alcohol use disorder (Reasonable Hypothesis) (No. 48 of 2017) (Cth).
The SoPs applicable to defence service that have been identified as relevant are:
(a)Statement of Principles concerning depressive disorder (No. 84 of 2015) (Cth); and
(b)Statement of Principles concerning alcohol use disorder (Balance of Probabilities) (No. 49 of 2017) (Cth).
A further SoP was included within the documents filed with the Tribunal by the respondent, namely, the Statement of Principles concerning depressive disorder (No. 28 of 2008) (Cth).[8] This SoP was amended by the Statement of Principles concerning depressive disorder (No. 41 of 2010) (Cth) with the amendments taking effect from 12 May 2010. This SoP, as amended, was then revoked by the Statement of Principles concerning depressive disorder (No. 84 of 2015) (Cth) which commenced on 20 July 2015. This SoP, as amended, was in force at the time of the veteran’s claim in December 2013 and applies to claims relating to defence service.
EVIDENCE
Veteran’s evidence
[8] Exhibit A, T-Documents, T16.
Statements
The veteran provided a statement prepared by his advocate, Mr D.J. Chalk, together with his application on 19 February 2015, to the VRB for review of the respondent’s decision dated 20 November 2014.[9]
[9] Exhibit A, T-Documents, T12.
Mr Chalk stated:
I believe that the Disability diagnosed by Dr. Penkaj Relan [consulting psychiatrist] DYSTHYMIA... is as a result of Mr Odgers Service, particularly during his service in “The Gulf War” as Sailor in the Royal Australian Navy. He was a Boiler Room Attendant during his service in the “Gulf” where the threat of mines was the most worrying especially for Personal [sic] below decks of the Ship. The concern was enhanced when he heard that another Ship had hit a mine in the area they had been in beforehand as well as finding they had been alerted to 2 Iraqi Jet Fighters. The Ship went to Action Stations and an SM1 was readied for action. The Aircraft remained out of Effective Range approximately 5 miles. These actions do not relate to a Category 2 Stressor [Depressive Disorder SOP 27 of 2008 but does match PTSD 82 of 2014 A Hostile or Life – Threatening Environment sub para [a].
The initial application was a request to investigate a claim for “ANXIETY and DEPRESSION.” This was a layman’s diagnosis as explained by the Veteran that he felt at times he was anxious and a bit down at times which was diagnosed by Dr Relan after a Consultation and Dysthemia [sic]. He also diagnosed Alcohol Harmful Use at that time. This diagnosis was as Dr [Relan] explained in his report was as a result of his Naval Service…
The pain and suffering is as a result of his accepted Disabilities.
The Veteran was also subjected to ongoing Trauma as a Sailor on Patrol Ships conducting Stop the Boats dealing with Illegal Immigrants Boats for 3 years…
The veteran provided a statement on 13 August 2018 during the course of this application.[10] The veteran’s statement outlined the following:
[10] Exhibit L.
·The veteran joined the Navy in 1987 at 15 years of age;
·Following his 2.5 year apprenticeship he was posted to HMAS Brisbane where he “did a few trips around Australia” before he participated in the Rim of the Pacific Exercise (‘RIMPAC’) in 1990;
·In May of 1990 he was informed of a pending deployment to operation Damask/Desert Storm of which he said: “I had mixed emotions of excitement and apprehension.”;
·He said he was “19, and working in the Boiler room (which is locked Down when at action stations and defence watches), and in a full fire fighting suit for Action Stations, I was pretty scared”. He arrived in the Gulf in November 1990;
·He said that: “When Hostilities commenced we went to Action Stations. I was in full fire fighting rig… We weren’t sure what response the Iraqi navy and Air force would give, so we were pretty stressed out. During Hostilities we witnessed a Tomahawk Cruise Missile track around our position at a range of around 1 mile and height around 10m. That was a bit concerning as we were in its direct path to its target. USS Tripoli hit a mine and 3 personnel were killed. This scared the hell out of us as we were 20 miles in front of her on the same track.”;
·He worked in the “most [forward] Machinery Space” and added that they transited through a mine field for 36 hours, during which time “going down the hole” was very intense. His bunk was “outboard and about 2m below the water line. With approx. 25mm of steel between us and any mines, it wasn’t a very nice place to sleep.”;
·He added that on one occasion towards the end of the war they detected two Iraqi MiG fighter jets in their sector, they readied a SM1 Missile, the Iraqi jets were engaged by the USS Midway’s combat air patrol and that the Iraqi jets remained around 3 miles out of the HMAS Brisbane’s “effective kill range.” he added that “the actual war lasted 48 days.”;
·Before and after the war he was allowed ashore in Bahrain and Abu Dhabi. He said: “We were encouraged by senior staff to drink our stresses away. We could do this in the International Hotels and at the Coalition Bases. We often drank until ‘the bad man went away’. All up we spent approx. 4 months in defence watches (6 hrs on 6 hrs off) which was extremely exhausting. We stopped in Singapore on the way home and in Brisbane. We were all drunk every time we went ashore.”;
·No counselling was ever offered to him;
·Sea going allowance was almost an extra 25% pay and so they “hid [their] conditions” and self-medicated them with alcohol;
·The motto on DDGs was “harden up and drink through it” which he did at every opportunity;
·He and the members of his crew would meet up for “warming flashes” where they would drink heavily until 12:30AM and return to the ship for a “flash up” at 4:00AM about which he said “We got pretty good at lighting boilers drunk”;
·There was a bullying culture rampant in the Navy during the 80s and 90s which he supposed was a way of coping with stress and that he was known to have a short fuse and a quick wit;
·His wife noticed changes on his return from the Gulf and he “drank through” issues at home. His wife warned him that she would leave him if he didn’t stop drinking, however, this did not eventuate. Around that time he would consume 18-24 drinks in a session on a weekend;
·He suffered physical injuries while drinking between 1993 and 1998;
·He still drinks approximately six standard drinks nightly and that he has received medical advice to cut down. He tries to have at least one alcohol free day per week;
·He considers that he is still using coping mechanisms from the 80s and 90s which are not acceptable now;
·As to the decision of the VRB, he considered it was wrong for a number of reasons including that “No statement was made by myself or my wife with regard to Alcohol Use, as the condition I had claimed was anxiety/depressive disorder. The alcohol abuse was first diagnosed by Dr Relan during his assessment and also by Dr Bayley.”; and
·As to his claim for depressive disorder, he considers he has had a positive response to anti-depressive therapy, and that “it is probable that the condition was manifested during the Gulf War and was hidden by self medicated Alcohol Abuse and Bullying”.
Veteran’s oral evidence
A hearing was held on 17 October 2018 at which the veteran gave evidence under oath. The veteran was examined in chief by his advocate and confirmed that he had read his statement, that the contents were true and correct, and that he did not wish to make any correction or amendment to the document.
The veteran was cross-examined by Mr Bruce Williams on behalf of the respondent.
The veteran was taken to a document within his service medical records relating to a medical attendance with Dr Pankaj Relan, Psychiatrist, in 2003 out of which a referral to Sheldon Goldenberg was made.[11] It was confirmed that Mr Goldenberg is a psychologist. The veteran confirmed he remembered the attendance well. By way of background, the veteran remarked:
My wife had had enough of my short temper, aggression, heavy drinking at the time, which was how I dealt with it, so she said basically get some help or she’s out of there. And so I went to the medics and saw them about what avenues I had, and they suggested I go and see a psychologist.
[11] Exhibit I, p.238.
The veteran stated that he was advised by Mr Goldenberg on some techniques to manage his symptoms including that he should learn to “sit there and count to 10 before you react”. He added that Mr Goldenberg advised him to cut down on drinking and that he believed the appointment was about half an hour in duration. When asked whether Mr Goldenberg asked the veteran to undergo any testing or assessment, the veteran replied: “Not really. First assessment was when I walked in, and he said, ‘Sit wherever you want’, and I went and sat in his chair.”
The veteran went on to say that Mr Goldenberg asked about what issues he was having at home and that he told Mr Goldenberg about his drinking and short fuse. He stated that he was serving on a patrol boat “dealing with illegal immigrants” and that his issues had worsened. He confirmed that these matters were part of “Operation Relex” in 2003 and also related to:
…fishing - no one died in that operation, but children and women were thrown - jumped into the water, and we were fishing them out. And I think that led to me sort of cracking it a bit, and that’s when my wife said, “Go and see some help.”
The veteran denied being prescribed any medication at the time. He also denied attending a psychologist again until 2011 after he had left the Navy.
The veteran gave evidence that in 2011 his treating doctor put him on Sertraline to treat his depression as a starting point and that his wife noticed an improvement in his demeanour. He stated at the hearing that he is now on 200mg of Sertraline which he understands to be the maximum dose for that medication, however, his psychiatrist had indicated to him he might be able to increase that dose.
The veteran was then taken to his original claim form which was lodged on 17 December 2013.[12] He confirmed that parts of the claim form were completed by him, and others were completed by Dr Michael Sainsbury. The veteran gave evidence that the parts of page 7 of the form completed by him included his description of the disability of “Anxiety & Depression” and his response to the question: “How do you believe your service caused, contributed to, or aggravated this disability?”; to which he answered: “Service in the Gulf War. Service dealing with illegal immigrants. Pain from service related injuries.”
[12] Exhibit A, T-Documents, T4.
The veteran indicated that the remaining parts of the relevant page[13] were completed by Dr Sainsbury including his answers to the following:
[13] Exhibit A, T-Documents, T4, p. 67 (page 7 of disability pension claim form).
·Question: “Signs and symptoms”
Answer: “Sleep disturbance… Insomnia. Appetite decreased, motivation decreased. Anhedonia… Mood depressed.
·Question: “Diagnosis”
Answer: “Depression & Anxiety. Flashbacks ? PTSD”
·Question: “Basis for diagnosis”
Answer: “Neurovegetative. Features of depression. Anxiety symptoms. Flash backs – illegal immigrants”
·Question: “When did you first become aware of the signs and symptoms of the disability, or aggravation of the disability? (approx. date if known)” [it is noted this question appears under a section with the heading: “To be filled in by the VETERAN”]
Answer: “2003”
·Question: “When did the veteran first consult you for this condition?”
Answer: “01/8/13”
As to why Dr Sainsbury answered “2003” in relation to first awareness of the symptoms and the reliability of that date, the veteran remarked:
… to be honest, that’s when I first became aware that I had maybe a psychological problem. The culture of the Navy back then, especially in the ‘90s, was - we just hardened up, drank through it, and we were advised to do this. This was how we dealt with stuff. And mental health was not discussed in work circles and we - well, we all knew that if you raised an issue while serving, you’re going to lose your seagoing, you’re not put up for promotion, you’re classed as a weaker person, a malingerer, and we - well, when I first saw the psychologist and he explained what mental issues were, that’s when I first became aware, is when I saw the Navy psychologist. Prior to that I thought I just drank a bit, got a little bit testy, a bit aggressive and we - I didn’t think I had a problem. Well, I didn’t think it was mental health to be honest, but that’s just the way were. We were all like that; we all drank, we all - as I’ve said in my statement, pardon the pun, but “Pull the piss out of each other” and that banter is how we - it was a cope - and now that I’ve had formal psychiatric training - not training, counselling, and my psych’s told me what that sort of banter does, it’s a release mechanism where we - we get that bit of a rush and that back and forth. So yes, I could say that I first became aware of the symptoms in 2003, but by becoming aware of the symptoms, that I’ve had them since 1990. If you get what I mean. In 1990 I didn’t know what a symptom was. That’s what I’m trying to say. No-one in the Navy really knew what symptoms were or any sort of mental health… So up until 2003 when we were told - when I was told what they were, then I could go, “Well, yeah, okay. I know what I’ve had for 13 years.”
The veteran added further that:
Because that’s when I saw the Navy psychologist, Mr Goldenberg, and he told me what I was acting out, as in aggression and drinking and - et cetera, were all part of trying to cope with psychological - a psychological problem that I have at that time… But prior to that I wouldn’t have been able to tell you what depression was and in 1990 I don’t think anyone in the Navy could tell you what depression was. It was just unheard of. So that’s why I would have - that’s why I said to the doctor that I first became aware in 2003 because prior to that mental health basically, to us, didn’t exist.
The veteran confirmed his evidence was that he was drinking at a heavy stage, in company, from after his experience in late 1990 to 1991.
When asked why, on the background of that heavy drinking, the veteran would choose to indicate 2003 in his claim form as the date from which he first noticed symptoms, the veteran gave evidence that he believed that the question was referring to the symptoms of anxiety and depression and that he did not believe he was answering a question relating to alcohol. He further replied:
All I can think is that it’s a contextual issue on my part, whereas he was asking me, “When did you first become aware of the signs and symptoms of the disability?” Well I didn’t know there was a disability until 2003. Before that it was just stress and we didn’t talk about it as anxiety or depression, we didn’t know what that was. So I answered - I would have answered Dr Sainsbury, as I probably would now, as, I first became aware of the signs and symptoms of the disability, not particularly my disability. Do you understand how I’m answering this? “The” disability, not so much as mine. I knew there was a - a disability in 2003. Prior to that I didn’t know that it was an anxiety and depression. I didn’t know what that was, basically. So I first became aware of that in 2003 when I spoke with a psychologist.
Mrs Toni Odgers
Statement
The veteran’s wife, Mrs Toni Odgers, provided a statement dated 22 November 2017.[14] In her statement she outlined the following evidence:
[14] Exhibit J.
·She met the veteran in 1990;
·He was a fun loving and very outgoing person and they both enjoyed social outings where they would have a few drinks;
·Their relationship deepened and the veteran proposed to her when he returned from the Gulf;
·She noticed the veteran had changed a lot and didn’t want to go out as much with her and preferred to “get on the grog” with the boys at Bells Hotel in Sydney;
·She put up with his increased drinking, but she was alarmed by it and she could see signs of him becoming an alcoholic;
·She nearly called the wedding off several times, however, they eventually married in 1992;
·They had arguments which would generally be about the veteran’s drinking;
·The veteran tried to curb his drinking in 1994 with the birth of their daughter and for financial reasons;
·She continually asked the veteran to stop drinking and to seek help, but he wouldn’t because it would “stop him going to sea” and affect his pay so she put up with it;
·In 1999 they moved to Cairns and his drinking worsened;
·In early 2003 she asked the veteran to seek anger management and the veteran saw a navy psychologist;
·The veteran was “always reluctant to tell anyone exactly how much he drank so he could stay at sea”;
·After leaving the navy the veteran sought help and was diagnosed with depression and anxiety which she believes the veteran has had since his return from the Gulf in 1991;
·The veteran has responded well to anti-depressants and “has become the person [she] fell in love with prior to the gulf war” and their relationship continues to improve.
Mrs Odgers’ Oral evidence
At the hearing on 17 October 2018, Mrs Odgers gave evidence under affirmation. Mrs Odgers confirmed she had read her statement recently and stood by the contents. The respondent did not ask any questions of Mrs Odgers.
MEDICAL EVIDENCE
Dr Pankaj Relan, Consultant Psychiatrist
Report of Dr Relan dated 23 June 2014
Dr Pankaj Relan, Consultant Psychiatrist, examined the veteran on 28 May 2014 and prepared a report dated 23 June 2014.[15]
[15] Exhibit A, T-Documents, T8.
Dr Relan reported that the veteran described his time in the Gulf as “difficult” and that “he faced a lot of traumatic incidents”.
Dr Relan reported an incident the veteran had described which occurred in 2007:
… in 2007 he was involved in the mission where they had to keep one of the immigrant vessels held up for 8 days awaiting a decision. During that time Mr Odgers was required to do surveillance as part of his role. He realised that part of his job involved turning off and away from his home and family, whilst on missions. It used to be quite difficult as it would be traumatic to see the young families on these illegal immigrant vessels and the squalid conditions they would be in whilst on those vessels. He described that as being difficult at the time to not compare his own situation with their situation.
…[it] had an impact on him, where over that time he got to know quite a few people on that vessel and it subsequently would play up on his mind about the eventual fate of the immigrants who were returned at that time. During those times often he would drink a fair bit of alcohol to calm himself down in order to get through the day to day situations.
Dr Relan’s account of the veteran’s mental health history is as follows:
·He was brought up quite tough being in the Navy and had to be emotionally strong;
·His alcohol consumption became quite heavy since the last 1990s and early 2000s which the veteran described as being predominantly to block out stress;
·While on patrol boats, the veteran would drink heavily while off-duty;
·In early 2000 the veteran’s alcohol consumption caused issues with his marriage and he would yell and become argumentative and irritable;
·The veteran saw a navy psychiatrist in the early 2000s who advised behavioural techniques which the veteran considered did not work well at the time and he preferred to drink;
·The veteran had started recognise within the six to seven years prior to, and especially within the year immediately prior to, his assessment that he was becoming more angry and agitated, depressed, withdrawn, and easily irritable. He grew distant from his friends and family and would become easily emotional and this;
·The veteran was not engaging in the activities he used to enjoy and was experiencing low moods with a lack of socialisation;
·He experienced impaired concentration, disrupted sleep, reduced appetite, and a lack of motivation;
·He has responded well to antidepressant treatment
As to alcohol consumption, Dr Relan reported:
His history of frequent heavy alcohol abuse has been noted above. In particular, he denied any features suggestive of withdrawal from alcohol or any craving for the same. However, his pattern of heavy abuse over the last 25 years in particular appears to be worsening over time in context of his irritability and worsening emotional patterns. He exhibited features suggestive of alcohol harmful use over this time. He did not exhibit features of alcohol dependence and has had periods of abstinence, in particular as required by his workplace being a dry zone.
Dr Relan diagnosed the veteran with “Dysthymia” and “Alcohol Harmful Use” under Axis I of the DSM IV. Dr Relan described dysthymia as the “primary condition” and alcohol harmful use as an “associated condition”.
He considered the most likely cause of the psychiatric condition to be:
…the incidents he faced as part of his work with the Navy. In particular the time he served during the gulf war as well as when he served on the vessels returning the illegal immigrant vessels had a major impact on his emotional state and were the probable cause of his above-diagnosed psychiatric condition. Also the pain related to his service-related physical injuries over the years added on to his psychiatric symptoms.
Dr Relan noted the origin of the symptoms was “somewhere around the late 1990s” and noted they were not diagnosed until the veteran “first became aware of these symptoms in the early 2000s, probably around 2003 to 2005, when he had attended a Navy psychiatrist to seek help in that context”.
Dr Relan considered that the veteran’s current psychiatric condition impacted on a range of areas of functioning to a mild degree including occupational, domestic, social interaction and leisure activities.
Supplementary Report of Dr Relan dated 22 April 2016
Dr Relan provided a supplementary report on 22 April 2016.[16] In this report Dr Relan reiterated his believe that the most likely precipitating events in the development of the veteran’s diagnosed conditions were related to his service in the Navy.
[16] Exhibit C.
As to the date of clinical onset of the conditions, Dr Relan’s answer re-states his opinion that the origin of the veteran’s psychological symptoms and distress was somewhere around the late 1990s for both conditions and that it was then that the veteran first became aware of his symptoms.
Oral evidence of Dr Relan
Dr Relan gave evidence under affirmation at the hearing on 17 October 2018.
Dr Relan was taken to his first report dated 23 June 2014[17] and asked whether he still adhered to the diagnoses of dysthymia and alcohol harmful use; Dr Relan replied:
Yes, I am, and I think I followed DSM-IV at the time, and to put it in exact DSM-IV wording, the diagnosis will be dysthymic disorder, which is commonly known as dysthymia; and also alcohol abuse disorder, which is equivalent to alcohol harmful use, so for all intents and purposes I consider they are my considered diagnoses.
[17] Exhibit A, T-Documents, T8.
Dr Relan was asked to confirm what he considered to be the most likely cause of the conditions; Dr Relan remarked:
…there were times when Mr Odgers was in Gulf War he did feel distressed at the time, and also there was some sleep deprivation due to the nature of work and the nature of place at the time. I think there was some contribution to his eventual suffering over time, but I think the major issue over time was the work that he was performing with the vessels returning the illegal immigrants, and that had a major impact around late 1990s or early 2000s, and that led him to seek treatment as well. His alcohol use had started some time around early to mid-90s, but again I do not consider that it was to the level of alcohol abuse or harmful use as a disorder… Alcohol abuse disorder I think had started some time during the early part when he had joined the service, and also during and after the Gulf War.
As to the clinical onset of the veteran’s dysthymia, Dr Relan opined:
… it was mainly towards early 2000 or late 1990 that he recognised that he was getting more angry and arguing and yelling, and there were more anger issues at home. And I think that is where he started to identify it in the hindsight as well, that it was happening. I think what is worth noting as well is that throughout this time, up until early 2000, there was no major impact on his level of functioning. He was largely able to perform even though there were times when he was drinking significant amounts, he was still able to perform reasonably well both at work, as well as in his general life functioning. And yes, the relationship at times was under stress, but there were no known periods of separation throughout that time. My considering is that it started towards late 1990.
Dr Relan was taken to the report of Dr Janet Bayley, Consultant Psychiatrist, dated 24 May 2017[18], which is discussed later. Dr Relan confirmed that he had read Dr Bayley’s report and commented that it is very comprehensive. Dr Relan considered that the symptom profile described by the veteran to Dr Bayley is similar to that which he had noted. He also noted their agreement as to the veteran’s alcohol condition.
[18] Exhibit L.
As to where the reports differ, Dr Relan considered that his own emphasis was on the level of functioning that the veteran has been able to maintain, and that Dr Bayley’s report differs in that regard. Dr Relan considered that the veteran’s symptoms were at their worst in early 2000 and that they were “chronic enough” and mild to moderate in severity at least up until 2010 or 2011 with respect to the DSM-IV and that the veteran fulfils the diagnostic criteria of dysthymic disorder. Dr Relan considered the veteran’s irritability and anger were a feature of the veteran’s dysthymia rather than a discrete anxiety disorder.
As to cross-examination, Dr Relan was asked by the veteran’s advocate whether he believed the time available for his assessment of the veteran was adequate; he considered that it was and later confirmed it went for about 1.5 hours.
Dr Relan agreed that veterans report hiding their symptoms in order that they are not detrimental to their ability to participate in their service and remarked that:
…alcohol in itself (indistinct) keep in mind, is a central nervous system depressant and have, as I said, a depressive effect to itself. So it’s a situation of what comes first, whether the person starts drinking first and then the depressive symptoms come, and they keep drinking to hide those symptoms, so I think it’s one or the other. I think I did take that point at the time as well from Mr Odgers of the culture of that workplace at the time that have led to him drinking as well, so I’m not too sure whether it was to simply hide the distress and difficulty that he had been facing at the time of the posting.
Dr Relan was asked by the veteran whether he agreed that his comment in the mental health history component of his report dated 23 June 2014 that the veteran had “increased anger issues” in the early 2000s was suggestive of an onset of anger issues prior to that time; Dr Relan answered: “considering that the anger issues had escalated, they had escalated in early 2000s, therefore the onset of those was probably towards late 1990s”.
Dr Janet Bayley, Consultant Psychiatrist
Report of Dr Bayley dated 24 May 2017
Dr Bayley assessed the veteran on 22 May 2017 for between 1.5 to 2 hours and provided a report dated 24 May 2017.[19] The history taken by Dr Bayley is similar to that taken by Dr Relan in his report dated 23 June 2014 and includes further information about the veteran’s psychiatric history and treatment after June 2014.
[19] Exhibit L.
Dr Bayley notes that the veteran was referred to Dr Mary-Ellen O’Hare in 2016 for treatment of anxiety and depression and at the time of writing had seen Dr O’Hare on five occasions. The veteran’s medication had been changed from Sertraline to Desvenlafaxine and he was engaging in supportive psychotherapy.
As to the veteran’s use of alcohol, Dr Bayley remarked that:
Mr Odgers had problematic use whilst he was in the Navy, up until the last couple of years. He now drinks half a dozen mid-strength cans of beer once or twice a week when he is home from his job. He cannot drink when he is out at sea. He tends to binge drink if he goes fishing. He believes his pattern of drinking since his time in the Navy has been that of a binge drinker. He does not believe he has ever been addicted to alcohol nor had withdrawal symptoms. He has not experienced seizures or symptoms of Delirium Tremens. His binge drinking pattern caused relationship problems which sent him to a psychologist in 2003. He becomes argumentative when he drinks heavily but not physically violent. He has never been in trouble with the law when drinking. He believes he has used alcohol to decrease pain, anxiety and depression. He believes that since he has been on Desvenlafaxine his drinking patterns have improved as he no longer needs to drink to improve his mood an anxiety.
Dr Bayley reported that:
·The veteran believes he first suffered mental health problems in 1990 when he was deployed in the Gulf;
·He experienced significant sleep deprivation and anxiety during deployment;
·He feels Navy culture encouraged him to drink, especially on shore, to manage anxiety and depression;
·He reported mental health issues in the Navy at that time were seen as being a disability and would result in being put ashore;
·He described a clear history of the onset of depression and anxiety during his deployment in the Gulf in 1990 which worsened when he returned to Sydney and he drank more and experienced increasing anxiety in late 1990 to early 1991;
·He experienced anxiety attacks, palpitations, cramping in his chest, stressed, low mood, irritability, decreased enjoyment and insomnia which did not experience any significant improvement until he began treatment with his GP and Dr O’Hare;
·Between 2000 and 2006 his stress levels increased when he participated in “boarding parties for illegal immigrants and illegal fishing boats”.
Dr Bayley summarised the veteran’s history, remarking that:
The impression is formed that Mr Odgers suffered chronic, untreated anxiety and depression for over twenty years from the time of his deployment to the First Gulf War in 1990 and that this was often hidden by his use of alcohol. He has also experienced chronic pain related to Service-related physical injuries and this has also been a complicating factor. He reports he experienced chronically poor sleep and mood swings. He was constantly irritable with a constant high level of anxiety. He often had a tight chest and was teary and sensitive. He had a lot of pride and had to keep things under wraps. He had no suicidal ideation and had the fighting spirit but he had poor self-worth. He lost enjoyment and experienced anergia and amotivation. He had to push himself to complete his activities and work. He has poor concentration. He would often feel dizzy. He felt sad but not weighed down. He was constantly worried and also very ‘grumpy’. When home, he could spend all day on the couch without wanting to get up. He felt pervasively guilty that he had let his wife down. He was socially withdrawn. He would only go out with the dogs. He ended up spending most of his time drinking and being on the couch. He stopped going out fishing. He had no agoraphobia. He does not describe any psychotic or manic symptoms. He does not describe any symptoms consistent with Obsessive Compulsive Disorder. He often experienced fast thoughts whilst ruminating over his worries. He did not ruminate over any one theme. He does not describe symptoms of post-traumatic stress disorder. He does not experience nightmares, flash-backs or avoidance of any of the traumatic things that he has seen or experienced.
Dr Bayley described the veteran’s response to treatment as follows:
It was somewhat of a revelation for Mr Odgers when he was treated by his general practitioner, Dr Michael Sainsbury, with an antidepressant in 2013. He said this considerably helped his mental health. He continued to improve with regards his mental health upon seeing Dr O’Hare and treatment with Desvenlafaxine. He now feels his mood is much brighter, he is able to get off the couch and is much more motivated. He has gone back to fishing and he feels he and his wife are getting on much better. His sleep has improved. His anxiety is less and he is enjoying life more. He feels as though he is thinking more clearly and that his depression and anxiety have lifted.
On reflection, he feels it is a shame that he did not get treatment earlier, for example when he got back from the First Gulf War, as depression, anxiety and alcohol use have adversely impacted upon his ability to function and enjoy life in subsequent years.
As to diagnosis, Dr Bayley opined that the veteran “suffered from an untreated Major Depressive Episode with Anxious Distress from 1990 until at least 2013”. Dr Bayley went on to suggest that:
The onset of this disorder was related to his service in the First Gulf War which began in 1990. He probably has only approached resolution of this depressive episode within the last 12 months. His Major Depressive Episode with Anxious Distress was characterised by depressed mood for most of the day, nearly every day, where he felt sad and empty. He had markedly diminished interest or pleasure in many of his activities on a daily basis. He had insomnia on a regular basis and loss of energy nearly every day. He had feelings of worthlessness nearly every day. He had diminished ability to think or concentrate. The symptoms caused him to have significant impairment within his functioning. He also had significant anxiety symptoms, including feeling keyed up or tense, restless and difficulty concentrating because of worry. He was also feeling that he might lose control and something awful might happen.
Dr Bayley considered that the diagnosis of Major Depressive Episode with Anxious Distress was the most appropriate and that the severity of the condition would be classified as moderate using the DSM V criteria and that it was in partial remission at the time of assessment. Dr Bayley also drew attention to the veteran’s significant response and improvement with anti-depressant therapy to support the diagnosis. Dr Bayley considered that the veteran’s response to such treatment made the diagnoses of “Dysthymia, Adjustment Disorder with Depressed and Anxious Mood or Alcohol Related Mood Disorder” less likely.
As to alcohol, Dr Bayley opined that the veteran:
Meets the criteria for an Alcohol Misuse Disorder but I believe this was secondary to the Major Depressive Episode with Anxious Distress. Mr Odgers presents with some evidence of an underlying obsessional personality style. He has strengths and is intelligent and has some insight into his current situation. He has been able to maintain long-term enduring relationships and has been able to manage his alcohol problems. He is actively help-seeking, thus I believe he has a fairly good prognosis.
Dr Bayley went on to describe the veteran’s alcohol condition as “co-morbid”.
In respect of the most likely cause of the veteran’s condition, Dr Bayley considered the veteran’s service was the primary cause, initially precipitated by his service in the Gulf in 1990, complicated by alcohol, and then exacerbated by his service between 2000-2007 on patrol boats. Like Dr Relan, Dr Bayley also considered that pain from the veteran’s service-related physical injuries had been a complicating factor in his psychiatric condition.
Dr Bayley considered the onset of the veteran’s condition to be in 1990 during his deployment in the Gulf.
Dr Bayley opined that the veteran’s condition was of moderate severity from onset in 1990 until at least 2013 when his condition improved with treatment with his general practitioner and Dr O’Hare.
In terms of the functional impact of the veteran’s condition, Dr Bayley considered that the veteran experienced a significant impairment to his function in respect of social functioning, leisure activities and his domestic situation. Dr Bayley considered that his function had improved globally with treatment. Dr Bayley considered that the veteran’s then current psychiatric condition did not cause him any incapacity for work, nor did it preclude him from working, and that he was capable of working a full-time position within the requirements of his then current occupation.
Oral evidence of Dr Bayley
Dr Bayley gave evidence under affirmation at the hearing on 17 October 2018.
Dr Bayley confirmed she stood by her diagnosis of the veteran’s psychiatric condition as a major depressive episode with anxious distress. As to the date of onset of the veteran’s psychiatric condition, Dr Bayley gave evidence consistent with her report that the veteran “became psychiatrically unwell for the first time in 1990, and that has waxed and waned but was largely untreated for a long period of time up until most recent times”. She considered that the veteran’s service in the Navy was the cause of the condition. Dr Bayley confirmed she was aware of Dr Relan’s diagnosis of the veteran’s psychiatric condition of dysthymia.
Dr Bayley gave evidence that she had met with the veteran’s wife, Mrs Odgers, and that Mrs Odgers had told her that the veteran “went away back in 1990 and came back a different person, that he was a lot more anxious and depressed and… drinking a lot more alcohol”.
Dr Bayley considered that the veteran would continue to require assistance with his psychiatric condition in the future, specifically, ongoing antidepressant treatment. Dr Bayley also considered that the veteran would benefit from psychological therapy to assist with anxiety, mood stability and anger management.
Under cross-examination, Dr Bayley was asked about the application of the diagnostic criteria for a depressive episode contained within the DSM V to the veteran’s situation in 1990-1991. Dr Bayley agreed that there is a collection of about nine symptoms and that the threshold required for a diagnosis to be made is that five or more of those symptoms are present during the same two-week period. Dr Bayley confirmed she had had the opportunity to address them in her deliberations and report and that she does so for every report and assessment. Dr Bayley opined at least five of the relevant criteria were met.
Dr Bayley was asked whether the first criterion, whether the veteran had “a depressed mood most of the day nearly every day as indicated by the subjective reporting or observations made by others” was something that was satisfied in the veteran’s case; she replied:
I’ll read to you from my interview, and it says that from when he came back from late 1990, early 1991, he reports increasing anxiety, frequent anxiety attacks associated with depressive symptoms of low mood. When I say that, I would mean pervasively low mood of longer than two weeks’ duration, meaning sadness, irritability, decreased enjoyment, anhedonia, poor sleep with mental insomnia, working hard to block out any - so all of that.
As to the second criterion, whether “the symptoms cause clinically significant distress or impairment in social, occupational or other important areas of functioning”, Dr Bayley opined:
I think that he masked it with binge drinking 25 and drinking. So he was still able to actually function… and I think that the drinking perhaps was something that we can argue whether or not it was a cause or effect. But I think that he feels that he drank more because he was actually depressed and unhappy and that he was trying to self-medicate in a way with that.
Dr Bayley added later:
I imagine there would have been issues. When they say social functioning I believe that there probably would have been issues within his relationship with his wife. I think that they said he was a different person when he came back. He was more irritable and he didn’t really function as well in a social setting. Occupationally, I don’t remember - I think he achieved reasonably well in his career, but I think there’s a fairly structured environment in the navy which would have been helpful for that. Other important areas of functioning, I think he was internally and subjectively distressed all that time.
In my belief it is [met], yes. I think from my understanding that, you know, Toni and Aaron have had a 20 somewhat difficult relationship, and I think that their marriage might have been easier if he hadn’t have been depressed.
In regards to the next criterion, that “the episode is not attributable to the physiological affects of a substance or to another medical condition”, it was put to Dr Bayley that such a substance could include alcohol and that the veteran reported a high level of consumption of alcohol; she agreed. Dr Bayley was asked whether the veteran’s condition could have arisen from his alcohol consumption; she replied:
Well, I can only go back to what I’ve written in my report, which I believe that the major depressive episode, major depressive symptoms came first and may have worsened the alcohol use.
Dr Bayley stated that, while they differed as to the specific diagnosis, she believes Dr Relan’s assessment and her own are similar in that they agree that the veteran had depressive symptoms. She considered that they agreed that the veteran had mood disorder symptoms from “1990-ish” and that they agreed the veteran had been “damaged by his experiences and that there had been some emotional psychiatric debilitation from that”.
Dr Bayley was taken to the reports of Dr Relan and she was invited to comment on Dr Relan’s opinion that “the origins of the psychological symptoms and distress was somewhere around the late 1990’s for both the diagnosed psychiatric conditions. This was when Mr Odgers first became aware of these symptoms”. Dr Bayley remarked:
I believe that the onset of Mr Odgers’ psychological symptoms was earlier – in the early 1990’s and that with regards to become aware of them, that’s a bit – insight is a difficult thing but he certainly can say on retrospect to me and his wife backs this up that he was – like I said, functionally different with regard to psychological state when he came back from the first Gulf War. So that – basically I am saying that he was aware on retrospect and his wife was aware at the time that he wasn’t functioning as well psychologically in the social and emotional sense. Perhaps, you know, maybe if he had been better with regards his mood he would have achieved at high levels in the navy. I really can’t comment on that. He suffered psychological impacts when he came back from – in the 1990’s – early 1990’s so that is my understanding of the course of his psychological symptoms. psychiatric symptoms. I’m not sure if I answered your question but that is – Dr Relan and I have a different opinion on that.
CONSIDERATION
When this Tribunal first convened a hearing of this application there were submissions made by the respondent in relation to the relevance of the claim for alcohol and alcohol abuse. In the original claim form the veteran had made a claim for “anxiety and depression”; there are no claims on that form relating to any alcohol condition. The general practitioner who signed the claim form did not make any notation that the veteran had an alcohol condition.[20] By consent, the original hearing was adjourned to enable the veteran to lodge a new claim for an alcohol condition, but this new claim has not been determined.
[20] Exhibit A, T-Documents, T4, pp. 67-68.
Having regard to the fact that the veteran had not in his initial claim form made a claim for an alcohol condition, it is settled that this Tribunal does not have jurisdiction to consider the new claim for the alcohol condition.[21]
[21] Dyce and Repatriation Commission [2010] AATA 956.
I now must consider the claim for anxiety and depression. In his claim form the veteran has indicated that his claim relates to his service in the Gulf War and the events of Operation Relex.
In Repatriation Commission v Bawden, Keane CJ, Jacobson and Bennett JJ remarked:[22]
A decision-maker is first obliged to examine the collection of symptoms of which the claimant complains to determine whether, according to the standard of “reasonable satisfaction” set by s120(4), they constitute a disease for the purposes of entitling a veteran to a pension. The decision-maker’s second task is to determine the aetiology of the disease by applying the Deledio process, which involves ascertaining whether there is a hypothesis, testing that hypothesis against the relevant Statement of Principles and turning to the facts to determine whether that hypothesis is excluded beyond reasonable doubt.
[22] (2012) 206 FCR 296; [2012] FCAFC 176 at [43].
Before the Tribunal there was evidence given by Dr Relan and Dr Bayley, both consultant psychiatrists. This is a certainly a case where there is a divergence of professional opinion about the mental health condition of the veteran.
Both specialists differ on the appropriate diagnosis of the mental condition of the veteran, although, both specialists consider that the veteran had depressive like symptoms. Dr Relan has diagnosed the veteran as suffering from a dysthymia condition and an alcohol harmful use condition. Dr Bayley considers that the veteran has a major depressive disorder with anxious distress that is in remission as well as having a co-morbid alcohol use disorder.
Both specialists also differ on the date of onset of the condition. Dr Relan considered that the onset of the veteran’s conditions was somewhere around the late 1990’s for both diagnosed conditions. Dr Relan has provided this opinion in his report dated 23 June 2014 and in his supplementary report dated 22 April 2016. In her report dated 24 May 2017, Dr Bayley considers that the onset of the major depression condition was in 1990, in her report she does not give a date of onset for the alcohol use disorder.
Dr Relan in giving evidence explained the basis of his diagnosis:
I considered that the level of symptoms that he had, even at its worst time in early 2000 and up until 2010 or 2011, I think they were in the range of mild to moderate to severity, and they were chronic enough in nature … as the DSM-IV diagnostic criteria he fulfils the diagnostic of dysthymic disorder, not of a specific major depressive episode. And I think the anxiety described is more in the form of … irritability and anger, which I considered was a feature of his dysthymia rather than a separate anxiety disorder. And I think we both are agreeable on the alcohol abuse”.
Dr Bayley in giving evidence explained the basis of her diagnosis:
My impression was that he suffered a major depressive episode with anxious distress which probably had an onset of around 1990 until at least 2013 when he was first treated by his general practitioner, Dr Sainsbury, and then I don’t believe he really got a significant improvement with depression until 2016 when he saw Dr O’Hare and she started desvenlafaxine. Again, he didn’t get full - well, he’s probably nearly at full remission, but he got another significant improvement with the higher doses of desvenlafaxine in 2016, 2017. So I believe he had untreated depression for quite a period of time
Dr Bayley explained the basis of her opinion as to time of onset of the condition of the veteran:
I consider that he started to have psychological problems consider with a major depressive disorder, major depressive episode in 1990.
Dr Bayley was asked what the cause of that episode was; she replied:
I believe the navy service, and he was quite young at the time and he was placed in a situation, which a lot of other people are as well, I’m sure there’s a lot of other psychological distress on that ship, as they usually are. But he was on the ship in high alert all the time even though they didn’t actually get fired upon, but they had to - I think he was saying that they had to avoid certain things, and there were certain risks involved, and that it was very stressful and that there was very little sleep and there was encouragement not to talk about your feelings and to be - you know, drink more alcohol, sort of. And I think that can be very damaging to people and it is something that can cause depression amongst those who are genetically vulnerable to developing depression. I think he suffered from depression from that time, and I think the ongoing employment with the navy and the culture around the navy didn’t help him get treatment when he really should have - really needed it
Dr Bayley also explained how her opinion as to the onset of the condition was influenced by the self-report of the veteran and the opinion of Dr O’Hare:
I should also point out that my diagnoses and consideration of this issue was also informed by Mr Odgers’ self-report, and I understand that - I don’t know if this is allowable, because Dr O’Hare has not put this in writing, but my communication with her was that she also agreed that the onset was around 1990 as well. But she didn’t put that in any writing. That was verbally communicated to me. So that may not be of relevance if there is nothing in writing from her.
The veteran has advised the Tribunal that “Dr O’Hare has refused to provide a report as she thought it could lead to a conflict of interest as she was my consulting Psychiatrist and referred me to Dr Bayley”.[23]
[23] Exhibit L.
Dr Bayley stated that she based her opinion on the self-report of the veteran. However, the service medical reports of the veteran were not placed before Dr Bayley when she formulated her report. The only document that was provided to Dr Bayley at that time appears to have been a letter of referral from Dr Sainsbury.
Dr Relan outlined to the Tribunal his methodology:
… I’m not there to treat the person. So during the interview I generally start the interview with getting a few basic details from the person and also getting to know about their general social situation, and then the next step from that is to understand what the key issues are, the presenting complaints; and in specific situations I get an understanding about their occupational background, and also especially with DVA I get a full and comprehensive history of the military service, and specifically the traumatic events that they’ve faced, any overseas postings that they had; and also then I go into the detailed symptom analysis of the history that they’re providing of the presenting complaints. And that goes into the systematic analysis of the presenting symptoms, sort of excluding the other psychiatric disorders that could be potentially present. Then I also further go on to assessing their level of functioning. Again I understand a lot of such situations can have a history over a longer period of time, so I generally try and get history of functioning over a period of time, and also get comprehensive assessment of functioning during the recent period as well. Then the history go then, the further parts of any previous psychiatric history, medical and surgical issues that they have faced, any drug and alcohol issues, a general understanding of family dynamics and family issues; and background, personal, and premorbid personality, which gives a more comprehensive understanding of the person himself or herself or what their background has been and what walk of life they come from; and if there were any factors that might predispose them or cause them any psychiatric issues.
I have reviewed the medical documents of the veteran and there are no incidents from 1990 that concern the mental health of the veteran. I should state in my review of the medical documentation it is apparent that the veteran has reported whenever he had health concerns. The earliest entry in the medical records that has any relevance is an entry on 24 July 2003 where there is a record of the veteran being “irritable” and having a “short fuse” and being referred to a psychologist. I have concluded that the opinion of Dr Relan about the onset of the mental health condition of the veteran was informed by the contemporaneous documents, being the service medical documents. I give some weight to his opinion that the onset of the condition was in the late 1990s, this is consistent with the veteran having disclosed on the claim form that he first became aware of the condition in 2003. That documentation also supports the conclusion of Dr Relan as to the nature of the mental health condition of the veteran; this conclusion was not challenged when Dr Relan was giving evidence. I accept the evidence of Dr Relan that the consultation that the veteran had with Dr Relan was for about 90 minutes.
Dr Bayley was asked about the diagnostic criteria for the major depressive disorder. In particular, she was referred to criteria (b) which states the symptoms cause clinically significant distress or impairment in social, occupational or other important areas of functioning, she considered that the applicant “masked it with binge drinking”. However, my review of the medical documentation does not support the conclusion of Dr Bayley that the veteran had chronic depression symptoms and depression that was pervasive and unremitting during the first Gulf war. Indeed, after the veteran returned from the first Gulf war he had an impressive record of promotion and recognition of his skill grade.
I must now determine whether the dysthymia condition is war-caused or whether it is defence-caused. The relevant SoPs are Instruments 83 and 84 of 2015.
I have previously stated that Dr Relan considered that the onset of the condition was somewhere around the late 1990’s for both diagnosed conditions: in giving evidence he explained that “the major issue over time was the work that he was performing with the vessels returning the illegal immigrants, and that had a major impact around late 1990s or early 2000s, and that led him to seek treatment as well”. I rely upon the assessment of Dr Relan which I consider is fair and balanced to conclude that the date of onset of the dysthymia condition was in the late 1990’s. My conclusion is that SoP Instrument number 83 of 2015[24] is inapplicable as the relevant connection to the veteran’s operational service is not present.
[24] Statement of Principles concerning depressive disorder (No. 83 of 2015) (Cth).
I will proceed to consider whether SoP Instrument number 84 of 2015[25] is applicable. Having accepted the diagnosis that the veteran has a dysthymia condition, I conclude that SoP Instrument number 84 of 2015 has relevance. This is because the dysthymia condition comes within the meaning of the definition of “depressive disorder” in subsection 7(2) of SoP Instrument number 84 of 2015 as being “persistent depressive disorder (which includes the condition previously known as dysthymia)”. Section 8 of this SoP is satisfied having regard to the evidence of Dr Relan that has linked the dysthymia condition to the defence service of the veteran in around the late 1990s or early 2000s.
[25] Statement of Principles concerning depressive disorder (No. 84 of 2015) (Cth).
For the condition of persistent depressive disorder, factor 9(21) of SoP No. 84 of 2015 is in issue. That factor applies where a veteran is “having alcohol use disorder at the time of the clinical worsening of depressive disorder”. I accept the opinion of Dr Relan that the onset of the veteran’s dysthymia condition was “somewhere around the late 1990’s”.
I must determine whether there is evidence of clinical worsening of the dysthymia condition in terms of factor 9(21). I am conscious that, in Repatriation Commission v Milenz, Finn J emphasised that the requirement that there be a clinical worsening of the dysthymia condition imposes a medical-scientific standard.[26] It is important that I consider the medical evidence which is before the Tribunal in order to determine whether there was a clinical worsening of the dysthymia condition.
[26] (2006) 93 ALD 107; [2006] FCA 1436 at 114.
Dr Relan, who considers that the onset of the dysthymia condition was in the late 1990s, has concluded that the “worst time was in early 2000 and up until 2010 or 2011”. I am conscious that Dr Relan has had the benefit of reviewing the service medical documents. I have earlier referred to a medical record from 24 July 2003 which records the veteran being “irritable” and having a “short fuse”. There is also a medical record dated 22 July 2003 which refers to the veteran being “stressed at the moment and planning to see a doctor about this”. I rely upon the opinion of Dr Relan as well as these contemporaneous medical records to conclude that there was a clinical worsening of the veteran’s dysthymia condition, in the period from 2000 to 2010, which Dr Relan has described as “the worst time”. I consider that, on the balance of probabilities, factor 9(21) is satisfied. Dr Bayley in her report of 24 May 2017 has reported that the depressive condition of the veteran is “complicated by alcohol misuse disorder”.
Dr Bayley reports that in 2003 the veteran was engaged in binge drinking which then caused the veteran to see a psychologist. This was at the time which Dr Relan has identified as the “worst time”. I have concluded that this is evidence which enables me to conclude that there was an aggravation of the dysthymia condition of the veteran which he suffered during his service in terms of subsection 10(2) of SoP No. 84 of 2011.
In Repatriation Commission v Yates[27] Lindgren J explained that an aggravation is not necessarily indicated by a temporary worsening of symptoms. This is certainly not a case of a temporary worsening of symptoms. Dr Relan in his report dated 28 May 2014 remarked that he did not consider that the conditions of the veteran are likely to improve significantly with the treatments provided.[28] Dr Bayley in her report of 24 May 2017 indicated the need for the continuation of the medication prescribed by Dr O’Hare. I consider, having regard to the reasons of Lindgren J in Repatriation Commission v Yates, that the impact of the veteran’s alcohol use disorder on his dysthymia condition certainly goes beyond a “temporary worsening of symptoms”.
[27] (1995) 38 ALD 80 at 88.
[28] Exhibit A, T-Documents, T8, p. 95.
After the veteran was discharged in 2007, Dr Relan considers that the veteran continued to experience his “worst time”, regarding the symptoms of his dysthymia condition, until 2010 or 2011. In the opinion of Dr Bayley, the veteran’s condition did not improve until he was prescribed anti-depressant treatment in 2013 and the evidence of the veteran and his wife supports this opinion. Dr Bayley remarked during her evidence in chief that “to decrease or change or stop his medication, there would be a risk of relapse which I think would be a risk of relapse which I think would cause unnecessary suffering to Mr Odgers. So my advice is that he should stay on an antidepressant into the longer term, if not lifelong, to attempt to prevent a relapse of depressive symptoms”. I give great weight to this assessment. Dr Relan reported in 2014 that the veteran’s condition “seems to have improved to a major degree since he started receiving the psychiatric and psychological treatments.”[29] Having regard to the continuing requirement for treatment, particularly beyond the temporal confines of his service, I am reasonably satisfied that the clinical worsening of the veteran’s dysthymia condition is not a “temporary worsening of symptoms”.
[29] Exhibit A, T-Documents, T8, p. 94.
CONCLUSION
I find that the persistent depressive disorder (which includes the condition previously known as dysthymia) of the veteran is a defence-caused condition. The respondent has not determined the claim of the veteran for alcohol use disorder. While the veteran lodged a claim for alcohol use disorder before the Tribunal has determined the application, it may be the case that the veteran may have to lodge a new claim for this condition having regard to subsection 15(5) of the Act.
The respondent in final submissions has submitted that if the veteran is successful the date of effect of my decision is 17 September 2013. The veteran has not made any submissions on the date of effect if he was successful. I consider that it is appropriate to make the 17 September 2013 the date of effect of my decision as this is the date when he lodged his claim.
DECISION
I set aside the decision under review and substitute a decision that the persistent depressive disorder (which includes the condition previously known as dysthymia) of the veteran was defence-caused and a pension is payable in respect of that condition. The application is remitted to the respondent for assessment of the rate of pension payable. I have determined that the date of effect of this decision is 17 September 2013 which is the date when the veteran lodged his claim.
I certify that the preceding 114 (one hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
........................................................................
Associate
Dated: 9 June 2020
Dates of Hearing: 19 November 2017, 17 October 2018 Date final submissions received: 21 December 2018 Advocate for the Applicant: Mr David Chalk Solicitor for the Respondent: Mr Bruce Williams, Repatriation Commission
0
3
0