PADDON Applicant And REPATRIATION COMMISSION
[2010] AATA 470
•25 June 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 470
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2633
VETERANS' APPEALS DIVISION ) Re RICHARD PADDON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr P McDermott, RFD, Senior Member and
Dr G J Maynard, Brigadier (Rtd), MemberDate25 June 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................[Sgd]...............
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Benefits and entitlements – Whether the applicant’s conditions are related to his war service – Decision affirmed.
Veteran’s Entitlements Act 1986 (Cth) ss 9, 13, 120, 120A, 196a, 196b, 180a
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Youngnickel v Repatriation Commission [2004] FCA 1691
REASONS FOR DECISION
25 June 2010 Dr P McDermott, RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member INTRODUCTION
1. Mr Richard Paddon (the veteran), who has a number of accepted disabilities, claims that because of his war service with the Australian Army he has conditions of anxiety disorder and depression. We have to determine whether these conditions are related to his war service.
CIRCUMSTANCES OF VETERAN
2. The veteran served with the Australian Army from 8 May 1967 until 7 May 1970. We are satisfied that the veteran rendered two periods of operational service in South Vietnam: 21 January 1969 to 27 April 1969; and, 25 October 1969 to 7 December 1969.
3. The veteran, who trained as a pioneer field engineer, served with the 32 Small Ship Squadron in Vietnam as an engineer aboard the AV Clive Steele.
4. A statement of the veteran was admitted into evidence. He also gave oral evidence at the hearing concerning the circumstances of his operational service which are also mentioned in the reasons of the Veterans’ Review Board in their decision dated 29 April 2009.
5. In January 1969, the AV Clive Steele was berthed alongside the USS Tom Green County in Vung Tau Harbour. The USS Tom Green County had been previously damaged by enemy fire. The veteran remarked that he was of an inquisitive nature and “simply walked over, and a young officer took me up there and showed me around”. The veteran stated that it “was just a huge black mess”. The veteran mentioned that the doors on the bulkhead “were totally blown out and buckled and bent”. Commenting on what he had seen the veteran said “I believed it was a nasty affair and I started to get quite concerned”.
6. The veteran had acknowledged before the Veterans’ Review Board that he was not aboard the AV Clive Steele when it was subject to rocket attacks. The veteran mistakenly mentioned in previous proceeding that he had been on board the vessel when it was fired upon because he had been convinced by crew members that he was there at the time.
7. The veteran reported a night-time incident that occurred on the third day of his first tour. His vessel was anchored off shore near an Australian base called Phan Thiet. The tenor of the evidence provided by the veteran was that the AV Clive Steele had arrived at a time when the tide was at such a height that the vessel could not anchor at the base. His vessel was not on action stations at the time. The veteran stated that “there were helicopters, presumably US, with mini guns and rockets shooting into the - into the sand hill, and that went on for probably – we think for about an hour”. The veteran remarked that the “general consensus” was that he was some five to six hundred metres away. The veteran witnessed this incident from the deck of his vessel. The veteran stated that he was not comfortable about being below deck because he would not be able to sleep. As a youngster he used to get nightmares after seeing a black and white movie about Malaysians who “were creeping up to a white couple in the jungle with machetes in their mouths”.
8. The veteran gave evidence of when there were action stations on the AV Clive Steele. He was required to man the machine gun for which he was not trained. On the first occasion when action stations were called the veteran stated that he had “a panic attack” and a “terrible anxiety attack”. The veteran stated that he had what might be referred to as feelings of apprehension. He remarked: “not having been shot at I wondered what would happen when it happened”. The veteran also remarked that “every time we went on action stations it was a bit of a, you know, butterfly in the stomach business”.
9. The veteran also gave evidence that he would see jets strafing and bombing. This activity was not close to the riverbank but he would see evidence of such attacks including a large number of sunken boats in the Saigon River. The veteran stated that he never came under fire, nor did he see any dead bodies or victims of war.
10. The veteran stated that his behaviour changed during his service in Vietnam. The veteran stated that there was “pretty much unlimited alcohol on board”. He also made reference to unsuccessful attempts to have “restrictions placed on the use of alcohol”. The veteran stated that “all the boys would drink just to relax”. He remarked that he would drink “dozens of cans, nearly every day”.
11. The veteran remarked that after his discharge he would spend “a lot of time drinking on my own in my shed after hours. I would get on the telephone and start ringing people at weird hours of the night, usually army personnel that I’d known. That was pretty common, I mean, I’d do this regularly”. The veteran considered that the cause of his drinking was depression. He remarked: “I used to get depressed. I’d sit there and…start getting drunk and I’d simply get depressed”.
12. After the veteran left the Army he became a very successful crop-dusting pilot. In 25 years he has never had an accident even though he had been drinking quite a lot. The veteran stated that he decided to sell his crop-dusting business at a time when there was a drought and the introduction of genetically modified cotton which only needed to be sprayed six times rather than fifteen. This Tribunal asked the veteran whether it was “really a business decision to sell”. The veteran answered: “Yes, I had enough of business” and “I thought that I had survived that long”.
13. In his evidence the veteran remembered that he still has his commercial pilot’s licence and commercial helicopter licence. He stated that he requires an annual medical examination in order to “activate” the licences.
14. In his oral evidence, the veteran remarked that he stopped drinking in 1991. He remarked: “I’d spent 25 years sitting in an aeroplane. I’d not had an accident, but I would’ve been – at that point I’d been drinking quite a lot, and it’s difficult to fly under powerlines all day with a hangover, I can promise you. It’s not easy. But with the advent of my doctor telling me that if I didn’t pull my head in, and my health was deteriorating – just all those things together, and I – why did I give it away? Because if I didn’t it was going to kill me. Something was.”
15. The veteran stated that for the last few years he has been working in sales selling insulation. His work has, in his own words, been pretty spasmodic: sometimes he is busy for a week and in other times just for two or three days. He now works full-time.
16. The veteran remarked that he does not take any medication for his conditions. Some antidepressant medication has been prescribed to him and he has chosen not to take the medicine.
SPECIALIST MEDICAL EVIDENCE
17. A number of psychiatrist’s reports are in evidence.
Dr Katz
18. On 24 June 2002, Dr M Katz, a psychiatrist, gave a report in which he diagnosed the veteran as suffering from generalised anxiety disorder with the symptoms becoming progressively worse in the recent years. Dr Katz also gave a diagnosis of alcohol abuse.
Dr Lawford
19. Dr B Lawford, a psychiatrist, gave evidence by telephone.
20. Dr Lawford has written three reports which were admitted in evidence.
21. On 8 November 2007, Dr Lawford made a report in which he opined that the veteran was suffering from post traumatic stress disorder, recurrent major depression and alcohol dependence disorder in remission. Dr Lawford, in his earlier report of 12 June 2007, had diagnosed the veteran as having developed symptoms of post traumatic stress disorder.
22. On 18 February 2009, Dr Lawford made another report in which he gave his opinion that the veteran was suffering from post traumatic stress disorder.
23. In giving evidence Dr Lawford stated that he has seen the veteran several times that since he made his report on 8 November 2007. At the hearing Dr Lawford remarked: “I don’t believe that he has quite the criteria for post traumatic stress disorder”. He then stated that he had revised his diagnosis to one of generalised anxiety disorder and depressive disorder. Dr Lawford stated that he reviewed the veteran after he read the report of Professor Jones and came to the conclusion that he was wrong in his diagnosis of post traumatic stress disorder.
24. Dr Lawford further stated that he believed that the condition of the veteran had its origins in his Vietnam experience. Dr Lawford remarked that it was “hard to tell” when the veteran had clinically developed his anxiety condition because “we are relying upon Mr Paddon himself”. Dr Lawford had relied upon the “discharge medical examination” where the veteran had said that he felt as though he was suffering from depression.
25. Dr Lawford did acknowledge that crop dusting was a hazardous and dangerous occupation. Dr Lawford remarked that the reason why the veteran gave up his pilot’s business was because “the symptoms have got worse recently”.
Professor Jones
26. Professor Jones, a Psychiatrist also gave evidence by telephone.
27. Professor Jones made a report on 11 September 2009 in which he concluded that the veteran was suffering from generalised anxiety disorder and depression, the former condition being prominent.
28. Professor Jones confirmed the opinions that he provided in the report on 11 September 2009 with one exception. In his report, Professor Jones remarked that the event, which in retrospect concerned the veteran the most, was the sight of the damage done to the vessel next door to his own “this being sustained only one day after he had arrived in Vietnam” (p.3). Professor Jones clarified that the damage to the vessel occurred one day before he arrived in Vietnam.
29. In his report, Professor Jones gave his opinion as to the date of the onset of any diagnosed conditions. Professor Jones opined that he would date the onset of the symptoms of his condition as being during his Vietnam service, possibly from a day or so after he arrived in Vietnam, although all the symptoms necessary for a diagnosis were not extant until after he left the Army, and were not recognised by him as features which could be treated until much later. In his oral evidence, Professor Jones stated that he thought that all the symptoms necessary for a diagnosis were present in 2002 at the time when he saw Dr Katz and Dr Khan.
30. In cross-examination, Professor Jones would not agree that all of the requirements for a diagnosis were in place during the course of the applicant’s Vietnam service. Professor Jones then stated that from the account of the veteran, the symptoms slowly escalated during the 1990s but with fluctuations. Professor Jones conceded that it was possible that the veteran had all of the symptoms prior to seeking treatment as the veteran stated that the depressive aspect was present when he left the service. Professor Jones stated that it was not possible to give a precise date upon which all of the clinical signs were present but there was strong evidence that the condition could be diagnosed about the time of his seeing Dr Carter and then Dr Katz and treatment was started. Professor Jones thought that the veteran had received intermittent treatment for over 10 years.
31. In cross-examination, Professor Jones was asked whether it was possible that the veteran had those symptoms for a short timeframe after his Vietnam service. Professor Jones answered that it was possible but the fact that the veteran was able to operate a very highly successful business as a pilot and a helicopter pilot for 25 years would suggest that any symptoms were not all that profound.
32. In cross-examination, Professor Jones was asked about the entry in the veteran’s medical records dated 16 April 1970 which referred to mild manic depression. Professor Jones remarked that he could not actually find any evidence that suggested that the veteran had manic episodes. Professor Jones was asked whether because the veteran ticked the box on the medical questionnaire which indicates that he had depression that it was highly probable that the veteran had all of the features of the depression or anxiety condition. Professor Jones remarked that it was possible but not highly probable.
33. In re-examination, Professor Jones was informed that the medical questionnaire that was completed by the veteran was completed at a time when the veteran was drinking quite heavily. He was asked whether alcohol would have any impact on his depression symptoms. Professor Jones remarked that consistent heavy drinking can regularly lead to both depression and anxiety.
PRIOR DECISIONS
34. On 7 February 2008, the Repatriation Commission determined that the conditions of post traumatic stress disorder and alcohol dependence were not war‑caused.
35. On 29 April 2009, the Veterans’ Review Board affirmed the decision of the Repatriation Commission.
36. The veteran now seeks review of his claim by this Tribunal.
LEGISLATIVE FRAMEWORK
37. Section 9 of the Veterans’ Entitlements Act 1986 (Cth) (the Act) makes provision for when an injury or disease is taken to be war-caused. The provision applies where “the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”.
38. Section 13(1) of the Act provides that where a veteran has become 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.
39. As the veteran has performed operational service the determination of whether his asserted condition is war-caused is to be made by applying ss 120(1) and 120(3) of the Act.
40. The Act provides that where a claim for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied beyond reasonable doubt, that there is no sufficient ground for making that determination: s 120(1).
41. The Act also provides that in applying subsection 120(1) 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: s 120(3).
STATEMENT OF PRINCIPLES
42. Section 196A of the Act provides for the establishment of the Repatriation Medical Authority. Section 196B of the Act provides that if the Repatriation Medical Authority 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 operational service rendered by veterans, the Repatriation Medical Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and 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 the veteran’s service.
43. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
44. In the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority has made a Statement of Principles in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that Statement of Principles. This follows from the application of s 120A(3), which provides that for the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or 196B(11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
ISSUES
45. Prior to the hearing a number of the following Statements of Principle were in contention. These were the Statement of Principles for Post Traumatic Stress Disorder: Instrument: No. 5 of 2008; the Statement of Principles for Anxiety Disorder: Instrument: No. 101 of 2007; the Statement of Principles for Depressive Disorder: Instrument: No. 27 of 2008 and the Statement of Principles for Alcohol Dependence/Abuse: Instrument No 1 of 2009.
46. At the outset of the hearing the counsel for the veteran abandoned any claim based upon the Statement of Principles for Post Traumatic Stress Disorder: Instrument: No. 5 of 2008. This abandonment was made because counsel for the veteran quite properly conceded that there was not a sufficient stressor in the material to enable a claim for post traumatic stress disorder to be made out. A specialist who was of the opinion that the veteran suffered from Post Traumatic Stress Disorder no longer held that view.
47. In final submissions counsel for the veteran also abandoned any reliance on the Statement of Principles for Alcohol Dependence/Abuse: Instrument No 1 of 2009. We consider that this concession was properly made as the veteran stated that since 1991 drinking has no longer been a problem. There is also no evidence before this Tribunal that the veteran now has an alcohol dependence or alcohol abuse condition.
48. The Tribunal sought submissions from the parties as to whether it was appropriate to consider the claim of the veteran for anxiety disorder and depression as the veteran had made a claim with the respondent for post traumatic stress disorder and not for an anxiety disorder or depression. We sought submissions on this issue because the respondent would have investigated this matter having regard to the claim of the veteran. However, the respondent did not take any issue with this application proceeding upon a claim for anxiety disorder and depression. The respondent, quite properly, has recognised that the veteran, being a lay person, could not properly identify the actual condition. We consider that the respondent has been given adequate notice that the veteran was claiming for a psychiatric condition and to investigate that condition.
DIAGNOSIS
49. We have to initially determine the appropriate diagnosis for the condition of the veteran. There is un-contradicted evidence from psychiatrists that the veteran is suffering from generalised anxiety disorder and depression and we find that the veteran is suffering from those two conditions.
CASA RECORDS
50. In view of the fact that the applicant has had a commercial pilot’s licence for a considerable period, we considered that it was appropriate to arrange for the CASA medical records to be summonsed. At an adjourned hearing of the application the medical records were admitted into evidence. The CASA records contain medical examinations for commercial pilots’ licences over a prolonged period. In the general examination there is no suggestion of anxiety or excessive alcohol intake reported or observed. Due to an anomaly in an ECG test, the applicant was anxious and intense. The applicant passed the test and he was advised that the anxiety was caused by the potential outcome of a test failure. The cardiologist was very supportive and did not see the anxiety as a cause to suspend the flying license.
CONSIDERATION
51. Having made a diagnosis of the conditions of the veteran, and ascertained that a Statement of Principles is in force in relation to each condition, it is now appropriate for us to apply the test prescribed by s 120A(3) of the Act. This Tribunal is bound by authority to apply the observations in Repatriation Commission v Deledio[1]:
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[2] determined by the Authority under s 196B(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 a 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 ss 196B(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 s 120(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.
[1] (1998) 83 FCR 82
[2] i.e. Statement of Principles.
First Deledio step
52. We must now consider all of the material which is before us and determine whether that material points to a hypothesis connecting the generalised anxiety disorder and depression conditions of the veteran with the circumstances of the particular service rendered by the veteran. In our view, the statement of the veteran that he had “a terrible anxiety attack” when action stations were called on his first tour of duty and the entry by the veteran on the discharge medical examination form that he has “frequent severe depression” is sufficient to point to such a hypothesis.
53. Accordingly, the first step in Deledio is satisfied.
Second Deledio step
54. The second step in Deledio requires us to ascertain whether there is a Statement of Principles which has been determined by the Repatriation Medical Authority.
55. We have already mentioned that there is a Statement of Principles for Anxiety Disorder: Instrument No. 101 of 2007 and a Statement of Principles for Depressive Disorder: Instrument: No. 27 of 2008.
56. These Statements of Principles expressly provide that they apply to claims under s 120A of the Act.[3]
[3] See Clause 10 of each Statement of Principles.
Third Deledio step
57. Having completed the second step, we now turn to the third step in Deledio which requires us to determine whether the hypothesis raised is reasonable. To do this, we are required to determine whether the relevant hypothesis complies with one or more of the factors referred to in the relevant Statement of Principles. In making this determination we have an obligation to consider all of the material before us. This is a consequence of s 120 (3) of the Act which requires consideration of the whole of the material and whether there is a reasonable hypothesis connecting the diagnosed conditions of the veteran with his service. We are not concerned with making any findings of fact at this stage of the process, we are only concerned with whether there is a reasonable hypothesis connecting the diagnosed conditions of the veteran with his service.
58. We have to consider the application of the Statement of Principles for Anxiety Disorder: Instrument No. 101 of 2007 and the Statement of Principles for Depressive Disorder: Instrument: No. 27 of 2008.
59. At the commencement of the hearing, counsel for the veteran informed this Tribunal of the factors of each Statement of Principles are relied upon by the veteran. These are:
· Experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder or depressive disorder; and
· Experiencing a category 2 stressor within the one year before the clinical onset of anxiety disorder or depressive disorder.
60. Also at the commencement of the hearing, counsel for the veteran relied upon a number of events as stressors: as category 1A stressors, the veteran seeing the USS Tom Green County and the AV Clive Steele after both vessels had been damaged by rocket fire and the veteran witnessing the helicopter attack on the third day of his tour while on the AV Clive Steele which was anchored off shore; and, as a category 2 stressor, the incident on the third day of the tour of the veteran.
STRESSORS
61. After reviewing the evidence before us we have concluded that the material does not disclose a category 1A stressor. Having regard to the definition of “a category 1A stressor” which is identical in each Statement of Principles, we have come to the conclusion that none of the events described by the veteran could be fairly regarded as a “life threatening event”. The veteran was not present when the USS Tom Green County and the AV Clive Steele had been damaged by rocket fire. The fact that the veteran would have seen the damage of the attacks on both vessels is not in our view a life threatening event. We comment that the veteran voluntarily inspected the USS Tom Green County and was escorted around the vessel. Our findings in this respect are based on the fact that the veteran was not aboard the AV Clive Steele at the time when it was subject to rocket attack. We also consider that the veteran witnessing the helicopter attack on the third day of his tour could not be regarded as a life-threatening event. At the time when he saw the helicopter attack he was not under action stations. We do not consider that his life was under threat on that occasion.
62. We have also formed the view that the material does not disclose a category 2 stressor, the definition of which is identical in each Statement of Principles. This definition has two aspects: the stressor must be one of the listed “negative life events” and also the effects of the stressor must be “chronic in nature and cause the person to feel ongoing distress, concern or worry”.[4] We do not consider that the veteran witnessing the helicopter attack on the third day of his tour comes within the description of one of the listed “negative life events”. We therefore consider that the veteran witnessing the helicopter attack on the third day of his tour is not a category 2 stressor. On behalf of the veteran it has been submitted that the incident on the third day of the veteran’s tour was a category 2 stressor because of the effects that it had on the veteran. The veteran, in his statement, remarked: “During the night I had visions of the enemy with machetes coming over the stern and attacking us. I felt utterly vulnerable”. The statement also contains the following comments: “I could not confide in anyone I was simply unable to sleep”. We do not consider that there is material before us which shows effects which are chronic in nature and cause the person to feel ongoing distress; concern and worry.
[4] See definition of “a category 2 stressor” in clause 9 of each Statement of Principles.
63. In considering whether the material discloses a category 2 stressor, we have examined two discharge history questionnaires that have been signed by the veteran. The veteran has within a short period of time given different answers to one particular question. The material before us does not explain this change of answers. On the first questionnaire that was signed on 26 March 1970, the veteran has answered “no” to the question of whether he has or ever had “frequent severe depression”. On the second questionnaire that was signed on 6 April 1970, the veteran has answered “yes” to the question of whether he has or ever had “frequent severe depression”. The medical practitioner has in response to this question made the comment: “Mild manic depressive (but does not require treatment)”.
64. The entry on the second discharge history questionnaire is certainly evidence that the veteran had at the time of his discharge a “mild manic depressive condition”. The veteran was not referred to a specialist for the condition. The comment of the medical officer (R.A. Burston, a respected practitioner of some seniority) that the condition of the veteran was then “mild” and did not require treatment is significant. This is because a Category 2 stressor has to have effects which are “chronic” in nature; this is not the case in this depressive condition which has been regarded as “mild”. The attention of Professor Jones was drawn to this notation by the medical officer. Professor Jones remarked that he did remember seeing the material but could not actually find any evidence that the veteran had any manic episodes.
CLINICAL ONSET
65. It is necessary having regard to the claim of the veteran to have regard to the clinical onset of the conditions of the veteran. On our view of the material, the template of the Statements of Principles is not satisfied with respect to the date of clinical onset of the anxiety disorder and depression conditions: see Statement of Principles No. 101 of 2007, cl. 6 (factors 6(a)(ii), (v)); Statement of Principles No. 27 of 2008, cl. 6 (factors 6(a)(ii),(vi)).
66. The meaning of the expression “clinical onset” was considered by the Full Court of the Federal Court of Australia in Lees v Repatriation Commission[5]. The Full Court referred to the analysis of this Tribunal in Re Robertson and Repatriation Commission[6], in which Senior Member Dwyer concluded that:
... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.
[5] (2002) 125 FCR 331.
[6] (1998) 50 ALD 668 at 670.
67. This analysis was specifically approved by Branson J in Repatriation Commission v Cornelius[7].
[7] [2002] FCA 750 at [26]. See also Youngnickel v Repatriation Commission [2004] FCA 1691 at [26] per Bennett J.
68. In considering what evidence is before us relating to clinical onset, we have examined the evidence from the psychiatrists.
69. The report dated 1 July 2002 from Dr Katz does not contain any conclusion as to the date of the clinical onset.
70. In his report of 8 November 2007, Dr Lawford, a psychiatrist, has expressed the following conclusion: “The date of onset of his anxiety disorder of Post Traumatic Stress Disorder would have been soon after entering Vietnam”. However, the basis of this conclusion is not stated in the report. Dr Lawford now concedes that the veteran does not have Post Traumatic Stress Disorder. However, in oral evidence, Dr Lawford was asked by counsel for the veteran whether he was able to say, with any certainty, when he actually developed his generalised anxiety disorder. Dr Lawford answered “it’s hard to tell because we were actually relying on Mr Paddon himself because all the people that – who know him were unable to be interviewed or they’re his families. Both his parents are now deceased unfortunately”. Dr Lawford stated that he relied upon reports by the veteran that he had anxiety symptoms whilst he was in Vietnam. Dr Lawford also points to the discharge medical documentation that refers to depressive conditions. This opinion, which was formed some time after the relevant events, does not refer to what features or symptoms are relied upon to base an opinion concerning the date of clinical onset on.[8]
[8] Lees and Repatriation Commission (2002) 74 ALD 68.
71. For a medical practitioner to express an opinion about the clinical onset of a condition, it would ordinarily be the case that the medical practitioner would state that the presence of certain features or symptoms at a particular time was indicative of the clinical onset of a condition.[9] The conclusion of Dr Lawford concerning the clinical onset of either the anxiety disorder or the depressive condition was not made with reference to the features specified in DSM-IV-TR. We mention that Dr Lawford quite properly acknowledged that it was “hard to tell” when the veteran developed his anxiety condition.
[9] Robertson and Repatriation Commission (1998) 50 ALD 668, 670.
72. Professor Jones stated that he thought that all of the symptoms necessary for a diagnosis were present in 2002 at the time when he saw Dr Katz and Dr Khan.
73. We make the observation that it is not possible for us to form the opinion that the hypothesis advanced on behalf of the veteran was a reasonable hypothesis for the purposes of s 120(3) of the Act. This is because there is no material before us which points to the clinical onset of a condition within the required time periods.[10] In our view, the mere assertion of the date of clinical onset, without providing reasons identifying what features or symptoms are relied upon for forming that opinion is not sufficient to enable us to form an opinion about whether a hypothesis is reasonable.
[10] Robertson and Repatriation Commission (1998) 50 ALD 668 at [670]; Repatriation Commission v Cornelius [2002] FCA 750 at [36] per Branson J.
Conclusion of Third Deledio step
74. For the above reasons, we consider that the third step in Deledio is not satisfied.
DECISION
75. We affirm the decision under review.
I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member
Signed: .....................[Sgd]...............................................
Kate Slack, Research AssociateDate/s of Hearing 10 February and 28 April 2010
Date of Decision 25 June 2010
Counsel for the Applicant Mr Russ Clutterbuck
Solicitor for the Applicant Haney Lawyers
Solicitor for the Respondent Mr Jeff Kelly
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