Outhred and Repatriation Commission

[2005] AATA 961

Administrative

Appeals

Tribunal

 

 

DECISION AND REASONS FOR DECISION [2005] AATA 961

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/709

VETERANS'     APPEALS       DIVISION

Re:         NOEL REGINALD OUTHRED

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Date:             30 September 2005

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Senior Member

VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ anxiety disorder ‑ date of clinical onset ‑ severe psychosocial stressors ‑ whether war‑caused 

Veterans' Entitlements Act 1986 ss 9, 120(1), 120(3), 120(4), 120A(3)

Re Robertson and Repatriation Commission (1998) 50 ALD 668

ReWitten and Repatriation Commission (1998) 54 ALD 605

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

30 September 2005  G.D.Friedman, Senior Member

1.      Noel Reginald Outhred is 84 years old.  He joined the Australian Army during World War 2 and served from 31 October 1941 to 15 April 1946, including nearly a year in New Guinea.  On 26 March 2003 he lodged a claim to have his condition of generalised anxiety disorder (the anxiety disorder) with secondary depression accepted as due to his war service.

2.      Mr Outhred says he experienced stressful events during the war including inadequate treatment of a kidney condition, two near‑drowning incidents and a fear of ambush by enemy troops in New Guinea within the two years before he developed his anxiety disorder.  The Repatriation Commission (the respondent) and the Veterans’ Review Board (VRB) disagreed.

LEGISLATIVE FRAMEWORK

3.      The relevant legislation is the Veterans’ Entitlements Act 1986 (the Act). Section 9 provides that where an injury or disease results from an occurrence that happened while a veteran was rendering operational service, or where it arose out of, or was attributable to, any eligible war service rendered by the veteran, it will be taken as being war‑caused and will attract disability pension entitlements. The Tribunal must determine that the disease or condition was war‑caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s 120(1) of the Act). Section 120(3) is affected by s 120A, which applies to claims for pension made after 1 June 1994 where a veteran has rendered operational service. The operation of s 120A depends upon whether there is a Statement of Principles (SoP) in force concerning the kind of disease contracted by Mr Outhred. In this case the relevant SoP is Nº 1 of 2000 concerning anxiety disorder. Factor 5(a)(ii) of the SoP states: experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder. 

4.      In Repatriation Commission v Deledio (1998) 83 FCR 82 the Full Federal Court summarised the four steps to be taken by the Tribunal in applying the legislative provisions and deciding whether a disease or injury is war‑caused. Step 3 provides that if an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. Mr Outhred needs to establish a case meeting all parts of the stated time factor outlined in the SoP, namely the occurrence of a stressor, within the time frame allowed, and before the anxiety disorder first occurred or was diagnosed.

ISSUES

5.      It follows that the issues before the Tribunal are:

§When did the anxiety disorder first occur or was first diagnosed (the clinical onset)?

§Did Mr Outhred experience a severe psychosocial stressor within the two years immediately before the clinical onset of the condition?

§If so, do the facts support Mr Outhred’s claim?

When was the Clinical Onset of Anxiety Disorder?

6.      There is no definition of the term clinical onset in the SoP or in the Act. In Re Robertson and Repatriation Commission (1998) 50 ALD 668 the Tribunal said, at paragraph 23:

…

[that clinical onset occurs], either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.

In ReWitten and Repatriation Commission (1998) 54 ALD 605 the Tribunal concluded, at paragraph 19, that:

…A disorder may not, in fact, have been diagnosed during the relevant period … with the benefit of hindsight and taking into account symptoms described by a veteran, it would need to be possible for a medical practitioner to express the opinion that the described symptoms established the clinical onset of the disorder during the relevant period…

7.      In his written statement (Exhibit A1) and when relating his history to medical practitioners Mr Outhred said that the anxiety disorder commenced during his army service after he developed a kidney stone in 1942.  He said that surgery several weeks later failed to remove it, and he suffered pain and discomfort leading to a diagnosis of right renal calculus which the respondent has accepted as war‑caused.

8.      Mr Outhred stated that pain, discomfort and worry from the abdominal and back symptoms he suffered from the renal calculus were the most significant factors in causing anxiety and depression during his service, particularly in 1945 when he suffered a further haemorrhage in New Guinea and was transferred to Sydney for surgery, but his emotional state was such that he requested a transfer to Melbourne to be close to his family.  He said that the doctors decided against surgery at that time, but he was not told the reason, and despite the pain and discomfort little was done until further surgery removed the kidney stone in 1951.

9.      Mr Outhred explained that in about 1945 or 1946 he discussed his anxiety with his general practitioner at the time of experiencing flashbacks relating to incidents during his army service, but he was not referred for psychological or psychiatric assessment or treatment.  He stated that the flashbacks continued into the 1950s and 1960s.  Under cross‑examination Mr Outhred agreed that the 1950s were generally positive for him, and the period from 1955 to 1970 was the best from a health perspective.  After qualifying as an accountant he built up his business interests, including property development, in addition to raising two children with his wife.  He said he had depressive episodes.  He admitted that he worked long hours from the 1950s onwards and became increasingly tense.  Mr Outhred first had treatment for anxiety in about 1974, when his general practitioner prescribed a tranquilliser.  In 1976 he was treated with a psychotropic/antidepressant medication and in 1984 when his depression and anxiety recurred.  He was diagnosed with anxiety and depression in 2003 and treated with zoloft.   

10.     The Tribunal had written evidence from Dr L. Chen, consultant psychiatrist; Dr J. Gelb, consultant psychiatrist; written and oral evidence from Dr N. Strauss, consultant and occupational psychiatrist; and Dr M. Epstein, consultant psychiatrist, all of whom agreed that the diagnosis was anxiety disorder.

11.     Dr Chen (T7, page 62) said that Mr Outhred’s depressive disorder is likely to be the consequence of life events including his many health problems, a belief that he did not receive adequate medical treatment for his kidney condition, and an unsatisfactory marriage.  Dr Gelb (T16, page 121) said that Mr Outhred was always busy with his work, and when he retired in 1989 he began thinking about his war service and ill‑health and he became more and more depressed and anxious, particularly about the perceived mistreatment of his kidney condition.  Dr Gelb stated that Mr Outhred’s medical condition should probably be accepted as service‑related, although he said that this was not a clear‑cut case.  Dr Gelb acknowledged that Mr Outhred had psychological difficulties such as anxiety and depression in the 1970s and 1980s.

12.     Dr Strauss (Exhibit R1) said that Mr Outhred felt resentment and anger about the treatment of his kidney complaint.  However, after the removal of the kidney stone in 1951, he did not have any psychiatric illness and had no treatment for psychological problems during the next 20 years.  Dr Strauss was not convinced that Mr Outhred is suffering from service‑related psychiatric problems, and stated that clinical onset of his generalised anxiety disorder with depression was in about 1973 or 1974, when he first sought treatment. 

13.     Dr Epstein (Exhibit A2) stated that Mr Outhred’s generalised anxiety disorder occurred in the context of the development of his kidney condition in 1942, and that clinical onset was within the last few years of World War 2.  Under cross‑examination Dr Epstein agreed that Mr Outhred did not mention any treatment in the 1940s and 1950s for anxiety and that the condition was of low intensity and did not interfere with his work capacity.  He also agreed that clinical onset might have occurred in 1974, or 9 years earlier when Mr Outhred became increasingly anxious and depressed.

14.     In forming a view on the date of clinical onset of Mr Outhred’s anxiety disorder, the Tribunal prefers the evidence from Dr Strauss.  This is consistent with the history given by Mr Outhred to various medical practitioners, that he was resentful and angry about the adequacy of his medical treatment for the kidney condition.  However, after the surgery in 1951 Mr Outhred was positive about his health and general well‑being.  He was able to develop his business interests and carry out his family responsibilities after his military service and did not seek treatment for psychological problems until about 1973 or 1974.  The Tribunal also takes into account Dr Epstein’s acknowledgment in cross‑examination that clinical onset of anxiety might have been in 1974 or 1965; and that Dr Chen and Dr Gelb both refer to the impact of life events such as work commitments and a poor marriage on the development of Mr Outhred’s anxiety disorder after the war.

15.     The Tribunal finds that Mr Outhred rendered operational service and that he suffered from anxiety disorder.  On balance, the evidence points to clinical onset of the anxiety disorder being 1973 or 1974, the time at which Mr Outhred’s anxiety disorder was first observed or treated.  The medical evidence refers to secondary depression, but as the SoP for depressive disorder also requires onset within two years of experiencing a stressor, Mr Outhred cannot succeed on the alternate diagnosis. 

Did Mr Outhred Experience a Severe Psychosocial Stressor within the Two Years Immediately Before the Clinical Onset of the Condition?

16.     Mr Outhred cannot succeed on the basis of any other stressors occurring during his war service.  In addition to the stress arising from treatment of his kidney condition, Mr Outhred described the following incidents:

§In Queensland in 1943 he was a passenger in a vehicle that stalled on a bridge over the flooded Burdekin River and he feared he would drown;

§In New Guinea in 1945 he was part of a convoy that travelled to the front lines to investigate matters involving service personnel pay, and he heard gunfire and feared an enemy ambush;

§In New Guinea in 1945 he was swept out to sea by a rip tide while swimming, and he was afraid he would drown; and

§In New Guinea in 1945 he was in a vessel at sea and was apprehensive about encountering the enemy after hearing the sound of gunfire from an offshore island.

17.     The evidence points to clinical onset of Mr Outhred’s anxiety disorder being 1973 or 1974.  Therefore, as all the claimed stressors occurred during Mr Outhred’s war service, the Tribunal concludes that the stressors were not experienced within the two years immediately before the clinical onset. 

CONCLUSION

18.     In view of the Tribunal’s conclusions in relation to the date of clinical onset and the date of the claimed stressors, there is no material or evidence pointing to Mr Outhred meeting any of the relevant factors in the SoP concerning anxiety disorder.  Therefore, the hypothesis connecting this condition with Mr Outhred’s service is deemed not to be a reasonable hypothesis, so Mr Outhred does not satisfy Step 3 from Deledio.  Therefore, he cannot establish that his disease or injury is war‑caused. 

DECISION

19.     The Tribunal affirms the decision under review.

I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)       Lydia Zozula

Legal Assistant

Date of hearing:  13 September 2005

Date of decision:  30 September 2005

Counsel for applicant:                  Mr A. Larkin
Solicitor for applicant:                  Williams Winter Solicitors

Advocate for respondent:            Mr K. Herman

Solicitor for respondent:              Advocacy Section, Department of Veterans’ Affairs