Parr and Repatriation Commission

[2004] AATA 568

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 568

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1534

VETERAN’S APPEALS DIVISION		)
Re		PHILLIP PARR

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N BELL, Member

Date3 June 2004

PlaceSydney

Decision

The decision under review is set aside and in substitution therefor the Tribunal decides that:

1.  The Applicant suffers from generalised anxiety disorder and alcohol abuse; and 

2.  These conditions are not war caused.

[Sgd] Ms N Bell, Member

CATCHWORDS

VETERAN’S AFFAIRS – matter remitted to Tribunal from the Federal Court – question of clinical onset of generalised anxiety disorder and alcohol abuse – whether clinical onset occurred within the requisite two year period – decision set aside

Repatriation Commission v Nation (1995) 57 FCR 25

Parr and Repatriation Commission [2003] AATA 93

Lees v Repatriation Commission (2003) 36 AAR 484

Veteran’s Entitlement Act 1986 ss120(1)

Statement of Principle No. 1. 2000

Statement of Principle No.76 1998

REASONS FOR DECISION

3 June 2004 MS N BELL            

1.      This application comes before the Tribunal pursuant to orders made by the Federal Court of Australia on 15 September 2003 remitting the matter to the Tribunal to be heard and determined according to law.  The Respondent’s appeal to the Federal Court concerned the Tribunal’s decision of 3 February 2003 which set aside the decision under review (the Respondent’s decision dated 27 October 2002 to refuse the Applicant’s claim for post traumatic stress disorder (“PTSD”), affirmed by the Veterans review Board on 13 November 2001) and substituted a decision that the Applicant suffers from generalised anxiety disorder and alcohol abuse which are war caused.

2.      I refer to the Tribunal’s decision in Parr and Repatriation Commission [2003] AATA 93, generally for the background to this matter.

3.      Moore J’s reasons for judgment indicate that the parties were in agreement that the Tribunal’s decision should be set aside, because the Tribunal’s approach to the question of clinical onset, both of the generalised anxiety disorder and the alcohol abuse, was deficient and reveals an error of law having regard to the judgment of the Full Court in Lees v Repatriation Commission (2002) 36 AAR 484. Moore J said:

“12.          …That matter concerned one of the Statement of Principles considered by the Tribunal in the present matter. The Court concluded that the Tribunal had not erred in determining when there had been "clinical onset". The Tribunal had said that the features of a generalised anxiety disorder referred to in clause 8 of SoP No. 1 of 2000 were "cumulative and so the material must point to his suffering from all of them in the two years after his experiencing the severe psychosocial stressors before it can be said that there is material pointing to the clinical onset of his generalised anxiety disorder in the relevant period."

In approving this approach the Full Court said (at [16]):

The purpose of the definition is to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from generalised anxiety disorder. While it is true that Statements of Principles are directed to causation, the means of establishing the necessary link in SoP1 between disease and war service is to require that the symptoms (or features) of the disease are, in a case such as the present, revealed within two years of the veteran experiencing a severe psychosocial stressor (relevantly, during operational service). This is intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis.

14In the present matter I am satisfied that the Tribunal has erred as the parties have agreed. In relation to both alcohol abuse and generalised anxiety disorder the Tribunal did not, in substance, address the question of when the identified symptoms or features of each had manifest themselves and whether they had done so within the requisite period of two years.”

4.      At the outset of the hearing I heard submissions from the parties on the question of the scope of the hearing; that is, whether I should confine my consideration to the issue of the date of clinical onset of the Applicant’s generalised anxiety disorder and alcohol abuse (the conditions previously found by me) or whether I should consider, again, all issues in the matter including the issue of diagnosis.

5.      In reaching the conclusion that I should confine the issues to be considered to that of the date of clinical onset, and any consequential issues flowing from that, I had regard to the reasons for judgment of Moore J, to the decision, referred to in His Honour’s judgment, in Repatriation Commission v Nation (1995) 57 FCR 25 and the submissions of the parties.

6.      Counsel for Mr Parr submitted that an order should be made by His Honour in terms which ensure the Tribunal only considers clinical onset of the generalised anxiety disorder and alcohol abuse and whether they occurred within the requisite two year period.  His Honour said:

“17In my opinion I should not make an order that, in express terms, constrains what the Tribunal can consider. I should, as commonly occurs, make an order remitting the matter for further hearing and determination by the Tribunal according to law, which reflects a formulation of the order sought by the Commission. However the Tribunal will no doubt be made aware that the error of law alleged by the Commission in its notice of appeal only arose "when [the Tribunal was] determining the time at which the clinical onset of generalised anxiety disorder and alcohol abuse occurred". It will be a matter for the Tribunal, aided by submissions of the parties, to determine the scope of what it can consider having regard to the terms of the order: see Repatriation Commission v Nation (1995) 57 FCR 25. The Tribunal may well take the view that it is possible to divorce the question of whether a person suffers from a disease or disorder from the question of when clinical onset of the disease or disorder occurred. “

7.      Given that the only ground of appeal to the Federal Court was my treatment of the issue of clinical onset and given the terms of the Court’s order, I decided to limit the scope of the inquiry to the question of whether there is material pointing to the date of clinical onset of the Applicant’s generalised anxiety disorder and alcohol abuse being in accordance with the relevant Statements of Principle (“SoPs”).

8.      Mr Winship, for the Applicant, relied on the Appeal Book in the appeal to the Federal Court (Exhibit A1) and directed my attention to the transcript of evidence of the original proceedings before the Tribunal at pages 90 to 138, being the evidence of the Applicant and the evidence of Dr A Dinnen, Consultant Psychiatrist.

9. Ms Henderson, for the Respondent, tendered the report of Dr J Champion dated 12 February 2004 (Exhibit R1) in relation to any issue that may arise under section 120(1) of the Veterans’ Entitlements Act 1986 (“the Act”).  Ms Henderson referred in detail to the evidence of the Applicant and submitted that there is no material before the Tribunal pointing to the date of clinical onset of the Applicant’s generalised anxiety disorder and alcohol abuse being within two years of the stressor experienced by the Applicant.

10.     It has already been established, and it is agreed between the parties, that the relevant SoPs, in relation to generalised anxiety disorder and alcohol abuse are SoPs No. 1 of 2000 and No. 76 of 1998 respectively.  SoP No. 1 of 2000, concerning generalised anxiety disorder, provides that the following factors must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting  generalised anxiety disorder with the Applicant’s service:

5…     

(a)      for generalised anxiety disorder or anxiety disorder not otherwise

specified, only

(i)        being a prisoner of war before the clinical onset of anxiety

disorder; or

(ii)       experiencing a severe psychosocial stressor within the two

years immediately before the clinical onset of anxiety disorder; or

(iii)      having a clinically significant psychiatric condition within

the two years immediately before the clinical onset of anxiety disorder; or

(iv)      having a major illness or injury within the two years

immediately before the clinical onset of anxiety disorder;

or

(v)       experiencing a severe psychosocial stressor within the two

years immediately before the clinical worsening of anxiety disorder; or

(vi)      having a major illness or injury within the two years

immediately before the clinical worsening of anxiety disorder; or

(vii)     having a clinically significant psychiatric condition within

the two years immediately before the clinical worsening of anxiety disorder; or

(b)       for anxiety disorder due to a generalised medical condition only,

having an endocrine, cardiovascular, respiratory, metabolic or

neurological disorder, where the disorder is a direct physiological

cause of the anxiety at the time of the clinical onset of the anxiety

disorder; or

(c)       inability to obtain appropriate clinical management for anxiety

disorder.”

11.     The Applicant relied on factor 5(a)(ii) above and so it is necessary to consider whether the severe stressor experienced by the Applicant was so experienced within the two years immediately before the clinical onset of generalised anxiety disorder.

12.     SoP No. 76 of 1998, concerning alcohol abuse, provides that the following factors must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol abuse with the Applicant’s service:

“5…    

(a)       suffering from a psychiatric disorder at the time of the clinical

onset of alcohol dependence or alcohol abuse; or

(b)       experiencing a severe stressor within the two years immediately

before the clinical onset of alcohol dependence or alcohol abuse;

or

(c)       suffering from a psychiatric disorder at the time of the clinical

worsening of alcohol dependence or alcohol abuse; or

(d)       experiencing a severe stressor within the two years immediately

before the clinical worsening of alcohol dependence or alcohol abuse; or

(e)       inability to obtain appropriate clinical management for alcohol

dependence or alcohol abuse.”

13.       The Applicant relied on factor 5(b) above and so it is necessary to consider whether the Applicant experienced the severe stressor within the two years immediately before the clinical onset of alcohol abuse.

14.     In accordance with the decision of the Full Federal Court in Lees (supra), and given my decision as to the scope of this inquiry, my task is to examine the material before me and to ascertain whether there is material pointing to the clinical onset of generalised anxiety disorder and alcohol abuse within the two years immediately following the severe (psychosocial) stressor that the Tribunal found he experienced (the Applicant’s experience of being on the HMAS Yarra, in Vung Tau Harbour, in Operation Awkward State 2, in a war zone for two periods on dates in April, May and June 1966 (“the stressor”)).  I must do that by reference to each of the symptoms or features of the diseases identified in the relevant SoPs.

15.     Both parties referred me to the evidence of the Applicant.  A transcript of that evidence appears at pages 85 to 119 of the Appeal Book.  In particular, the Applicant addresses the period during and the two years following his visits to Vung Tau Harbour at pages 90 to 102, and on pages 104, 111, 115 and 117.

16.     The diagnostic criteria in SoP No.1 of 2000, concerning generalised anxiety disorder are as follows:

“A       Excessive anxiety and worry (apprehensive expectation), which

occur on more days than not for a continuous period of at least six

months, about a number of events or activities; and

B        The person finds it difficult to control the worry; and

C        The anxiety and worry are associated with three or more of the

following six symptoms, with at least some symptoms present for

more days than not during the previous six month period:

(1)       restlessness or feeling keyed up or on edge

(2)       being easily fatigued

(3)       difficulty concentrating or mind going blank

(4)       irritability

(5)        muscle tension

(6)       difficulty falling or staying asleep, or restless unsatisfying        sleep; and

D        The focus of the anxiety and worry is not confined to features of

any other Axis I disorder; and

E        The anxiety, worry, or physical symptoms (as described in C.

above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and

F        The anxiety and worry are not due to the direct physiological

effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;

…”

17.     As to the first feature or symptom described in SoP 1 of 2000 (paragraph A), excessive anxiety or worry occurring on more days than not for a continuous period of at least six months; while the Applicant’s evidence noted above refers to his reaction, his lack of sleep and feelings of anxiety while in Vung Tao and shortly afterwards, there is no mention of those feelings or reactions persisting for the six months following his second trip to Vung Tao or for any continuous six month period within the two years following his trips to Vung Tao. The Applicant does, however, state at page 104 of the Appeal Book that his brother-in-law commented on the change in him when he returned from Vietnam and described him as not being the happy person that he used to be and as having mood swings, heavy drinking and fighting and being on edge “all the time”.  It is arguable that this constitutes material pointing to the presence of the symptom described in paragraph A.  It is also supported by the evidence, in Dr Dinnen’s report of 19 April 2002 at page 141 of the Appeal Book, that the Applicant reported having been very nervous and having trouble sleeping from the time he returned from Vietnam and that he was definitely “different”.

18.     In relation to the second feature or symptom, described in paragraph B, difficulty in controlling the worry, there is no material in the Applicant’s evidence that points to this.  Indeed, his evidence in cross examination was (at page115 of the appeal book):

“You said you were worried when you were in Vietnam but you managed to control that worry at all times, didn’t you? --- Yes”

19.     I note that the Applicant gave evidence, at page 102 of the Appeal Book, of two incidents, whilst on submarines, which caused him fear.  He described this as “a different type of fear” and said “it was just a scary situation”.  These two incidents do not appear to have contributed to any continuity of anxiety or to difficultly in controlling worry.

20.     Dr Dinnen’s evidence does not provide any material on this point.  He does, however, (at page 133 of the Appeal Book) refer to the report of Dr McGeorge dated 12 January 1971 which describes insomnia and tension becoming worse over the previous year, recommends transfer out of submarines and prescribes Valium.  However, this report puts the onset of these symptoms at approximately January 1970, more than 18 months after the expiry of the two year period for clinical onset required factor 5(a)(ii).

21.     I also note that during his time on submarines the Applicant was promoted from Petty Officer to Chief Petty Officer (page 158 Appeal Book).  This material suggests that he was coping with the difficult submarine work and was not suffering, at least to the degree required, from the symptoms described in the SoP.

22.     On this basis I must conclude that there is no material before me that points to the Applicant having manifested the features or symptoms of generalised anxiety disorder, as described in the relevant SoP, within two years of the stressor.  It follows that the clinical onset of the disease was not within two years of the stressor, the Applicant’s hypothesis does not conform with the SoP and the disease was therefore not war caused.

23.     In relation to the Applicant’s condition of alcohol abuse, the first, and primary,  symptom or feature described in the diagnostic criteria in the SoP is:

“A       A maladaptive pattern of alcohol use leading to

clinically significant impairment or distress, as manifested

by one (or more) of the following, occurring within a 12-

month period:

(1)       recurrent alcohol use resulting in a failure to fulfil

major role obligations at work, school, or home

(2)       recurrent alcohol use in situations in which it is physically hazardous

(3)       recurrent alcohol -related legal problems

(4)       continued alcohol use despite having persistent or

recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol”

24.     There is no material, in the evidence of the Applicant or in the medical or other evidence before the Tribunal, that points to a failure to fulfil major role obligations at work or home, recurrent alcohol use with physical hazard, recurrent alcohol related legal problems or continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by alcohol within the two years following the stressor.  The only mention of problematic behaviour is the Applicant’s evidence, at page 105 of the Appeal Book, about getting into physical fights when he returned from Vietnam.  He said these would arise because of being “very aggravated” combined with alcohol.  He said these would occur about once per week when he was ashore and continued until “old age caught up with” him.  He said, at page 107, that there have never been any “consequences” from the fights he has had.  In cross examination at page 108, the Applicant said he has never had cause to go to hospital after a fight and they are generally just arguments that get out of control and then one or two punches are thrown.

25.     However, while there is material before the Tribunal that points to the Applicant having drunk to excess during his shore leave when in Hong Kong and Singapore, there is no material pointing to his having done so after his return from Vietnam.  The only mention of drinking in the two years following his visits to Vung Tao is the Applicant’s evidence (at page 117 of the Appeal Book) that he was once disciplined on an alcohol related problem in the submarines at Chatham Dockyard near London.  This was not elaborated on and, alone, does not point to a maladaptive pattern of alcohol use within the relevant period.

26.     On this basis I must conclude that there is no material before me that points to the Applicant having manifested the features or symptoms of alcohol abuse, as described in the SoP, within two years of the stressor.  It follows that the clinical onset of the disease was not within two years of the stressor, the Applicant’s hypothesis does not conform with the SoP and the disease was therefore not war caused.

27. It follows that it is not necessary for me to consider the application of section 120(1) of the Act to the Applicant’s hypothesis.

Decision

28.     The decision under review is set aside.  In substitution therefor the Tribunal decides that

a)The Applicant suffers from generalised anxiety disorder and alcohol abuse; and

(b)These conditions are not war caused.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL

Signed: A. Krilis
  Associate

Date/s of Hearing  26 March 2004
Date of Decision  3 June 2004
Solicitor for the Applicant          Mr Brian Winship
Counsel for the Respondent     Miss Rhonda Henderson
Solicitor for the Respondent     Angela Nanson