PIANTA and REPATRIATION COMMISSION
[2009] AATA 21
•14 January 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 21
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5959
VETERANS' APPEALS DIVISION ) Re PHILLIP PIANTA Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr P A Staer, MemberDate14 January 2009
PlacePerth
Decision The Tribunal affirms the decision under review
..........[sgd S D Hotop]........
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant rendered defence service in Royal Australian Air Force from August 1973 to August 1994 – applicant contracted mental disorder in or about 1992 – diagnosis – delusional disorder or paranoid schizophrenia – appropriate diagnosis is paranoid schizophrenia – Statement of Principles (SoP) – inability to obtain appropriate clinical management for schizophrenia – not related to defence service – SoP does not uphold contention that paranoid schizophrenia on balance of probabilities connected with defence service – paranoid schizophrenia not defence-caused – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 70, s 120(4), s120B and s 196B
Statement of Principles concerning Schizophrenia (Instrument No 133 of 1996)
Brew v Repatriation Commission (1999) 56 ALD 403
Brew v Repatriation Commission (1999) 94 FCR 80
Repatriation Commission v Money (2008) 100 ALD 527
REASONS FOR DECISION
14 January 2009 Deputy President S D Hotop
Dr P A Staer, MemberIntroduction
1. Phillip Pianta (“the applicant”) served in the Royal Australian Air Force (“RAAF”) from 27 August 1973 to 9 August 1994. That period of service constitutes “defence service” (other than “hazardous service”) for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”).
2. On 9 March 1994 the applicant lodged with the Department of Veterans’ Affairs (“DVA”) a claim for pension and medical treatment in respect of a condition described as “psychiatric disorder”. On 26 August 1994, however, a delegate of the Repatriation Commission (“respondent”) made a determination that the applicant was suffering from “paranoid psychosis” but that that condition was not “defence-caused” for the purposes of the VE Act. The delegate, accordingly, refused the applicant’s claim.
3. On 15 May 1995 a delegate of Comcare made a determination that the Department of Defence was liable under s14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) to pay compensation under that Act to the applicant in respect of an injury described as “an aggravation of a disease, namely, Delusional Disorder of Persecutory Type”.
4. On 24 March 2005 the applicant lodged with the DVA a claim for disability pension under the VE Act in respect of a condition was described as “paranoid psychosis”.
5. On 8 September 2005 a delegate of the respondent decided that the applicant was suffering from “paranoid schizophrenia” but that that condition was not related to his RAAF service and, accordingly, was not defence-caused for the purposes of the VE Act. The applicant’s claim for disability pension was, therefore, refused.
6. On 5 September 2007 the Veterans’ Review Board (“VRB”) affirmed the respondent’s decision of 8 September 2005.
7. On 12 December 2007 the applicant applied to the Tribunal for review of the VRB’s decision of 5 September 2007.
The Issues and the Tribunal’s Determination
8. The issues for the Tribunal’s determination are:
·whether the applicant is suffering from a mental disorder, and, if so, the appropriate diagnosis of that mental disorder;
·whether such mental disorder is defence-caused for the purposes of the VE Act.
9. For the reasons which follow, the Tribunal has determined that:
·the applicant is suffering from a mental disorder, namely, paranoid schizophrenia ;
·the applicant’s paranoid schizophrenia is not defence-caused for the purposes of the VE Act.
The Evidence
10. The evidence before the Tribunal comprised:
·the “T Documents” (T1-T17) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·bundle of documents tendered by the applicant (Exhibit A1);
·witness statement of Sandra Leonie Pianta, dated 30 October 2008, tendered by the applicant (Exhibit A2);
·report of Dr John Kemp (including appendices 1-20), dated 17 December 2007, tendered by the respondent (Exhibit R1);
·report of Dr Victor Cheng, dated 11 April 2008, tendered by the respondent (Exhibit R2); and
·the oral evidence of the applicant, and Sandra Pianta, Dr Kemp and Dr Cheng.
The applicant’s evidence
11. The applicant confirmed that he enlisted in the RAAF on 27 August 1973 prior to which he had been a trainee with the Postmaster General’s Department for 18 months. He said that he commenced his RAAF career as a radio technician and he later had a flying position as a navigator before subsequently being involved in flying operations, first as an equipment operator and subsequently (from 1990) as a senior officer (Squadron Leader) involved in developing and enhancing aircraft capabilities.
12. The applicant was referred to various performance evaluation reports which were prepared regarding him from 1989 (part of Exhibit A1):
·as regards the assessing officer’s report dated 19 October 1989 for the period September 1988 to September 1989, the applicant said that he agreed with the report and he did not make any representation in response to it;
·similarly, as regards the assessing officer’s report dated 6 November 1991 for the period October 1990 to September 1991, he said that he was happy with the report and he did not make any representation in response to it;
·as regards the assessing officer’s report dated 7 July 1992 for the period October 1991 to 1 July 1992, however, he said that he was not happy with the report because of a reference in the report to his mental instability which, he believed, signalled the end of his RAAF career, and he made a representation to the reviewing officer in response to that report.
13. The applicant elaborated further in relation to the July 1992 report. He said that that report effectively destroyed his “skill capacity” and, as a result, he lost his credibility as a technical expert, without which he could not operate in that capacity. He said that that report meant that he would not be promoted and he would not be able to deal with aircraft again. He believed that that report would cost him money (namely, the skill component of his salary), his credibility and standing, and that his career was “gone”. He added that, prior to that report, there had been conflict in the workplace between him and four of his superior officers, including the assessing officer who made the report of 7 July 1992.
14. The applicant said that in 1993 he was referred to a RAAF psychologist who said “nothing constructive” and just “palmed [him] off” to three psychiatrists. He said that, as a result, he was deemed medically unfit for service in early 1994. He added that, from February 1994 until his discharge in August 1994, he stayed at home because he had been told “not to front work”.
15. The applicant said that none of the psychiatrists who examined him at the request of the RAAF gave him any advice or counselled him about his mental condition; nor, he added, did any of his senior officers in the RAAF counsel him about the treatment he should undergo in order to continue his RAAF career; nor did the RAAF make any attempt to reskill him for his future career in the RAAF.
16. As regards his conflict with his immediate superior officers, the applicant said that he believed that he was being subjected to surveillance – that others were checking up on him, and spying on him – and he wanted to know why, and that this was a source of internal conflict for him.
17. The applicant said that since 1992 he has “heard voices and seen things that others haven’t or didn’t want to admit to”. He added that he “hears voices” maybe once a week – not every day – and he “believes it to be true” but he “simply can’t prove it”. He said that he accepts that he “acts and thinks differently from before”, and he described an instance where he saw a brightly-coloured snake going through a brick wall on his property, yet he could not find any hole in that wall through which the snake could have passed.
18. The applicant said that he has, in recent years, tried three medications which had been prescribed by a psychiatrist (Dr Kemp) but that these had not been successful, and he is presently not taking any medication.
The evidence of Sandra Leonie Pianta
19. Mrs Pianta’s witness statement, dated 30 October 2008, is as follows:
“Phillip and I have been married for nearly thirty years and have three beautiful children. All of them are now making their own way in the world and have moved out of home.
Since joining the RAAF Phillip received good service reports and was well liked and respected among his peers. After taking a Commission Phillip flew all over the world and did many serious jobs for the RAAF. Some of it was not allowed to be discussed outside of work and he always respected that.
After some time things became more difficult. I can’t remember dates as I had three small children at home one of whom became seriously ill in Adelaide. After our move to Canberra things changed again. Philip was sent to see a doctor. He (Phillip) believed the officer in the next office was plotting his demise and said he heard things. More appointments followed and Phillip was invalided out of the RAAF.
Since leaving the RAAF there has been no support for Phillip or myself and family apart from Comsuper and Centrelink (monetary). There was no ongoing treatment suggested or offered.
Phillip’s temper has increased markedly and he talks to himself constantly. He believes events that are completely fictional have happened. I have learnt not to argue but to allow to get past the issue (sic). As yet I have not been physically harmed but I am careful not to inflame any situation.
…
Before these troubles started Phillip was a very fit, healthy and energetic man. He used to ride his bike 15 miles a day to work. Now he tries to keep fit but he gets very tired. He does not sleep well at all. He is very restless and moans and kicks all through the night and wakes up tired in the morning. If he sits down in the lounge chair to read or watch TV he usually falls asleep within 10 or 15 minutes.
Life has been increasingly more difficult and we have found only limited success with some of the drugs that have been prescribed.” (Exhibit A2)
Relevant medical material in Exhibit A1 and in the T Documents
20. A “Psychological Report – RAAF”, dated 24 September 1993, prepared by S H Bongers states as follows:
“1.I was asked to assess SQNLDR Pianta because he was continuing to assert that he is being investigated by RAAFPOL despite being told that he was not the subject of an investigation by either the RAAF Police or any other government department. On 17 September 1993, I interviewed SQNLDR Pianta in the presence of WGCDR B Nugent. During that interview, SQNLDR Pianta described four incidents contributing to his belief that has brought him to notice. Two of the incidents are summarised below:
a.SQNLDR Pianta stated that the most recent incident was a conversation he overheard in a cafe near Goulburn during the week of our interview. As regards that conversation, SQNLDR Pianta told me that he had overheard three men having a conversation about himself. Asked how he knew that, the member said the room he had occupied at AHQAUST was described, and that the conversation also included discussion of a mark on one of his shirts. Because of this, SQNLDR Pianta believed that his room had been searched. The member said that he believed the men were from DFB.
b.In describing an earlier incident, SQNLDR Pianta told me that he walked into the Pass Office at Anzac Park West to find a meeting in progress. He told me that he believes those present at the meeting were talking about him because one looked up and said: ‘There he is!’ SQNLDR Pianta added that, following that statement, he was escorted away from the office by a Protective Service Officer.
2.As you know, SQNLDR Pianta believes that neighbours have been questioned by ‘the Commonwealth’ with a view to determining whether he (the member) exhibited depressive tendencies. As regards that belief, I asked SQNLDR Pianta what his wife thought about neighbours being interviewed. SQNLDR Pianta replied saying that his wife believed that the interviews were childish games. On that, I asked the member whether he thought it possible that some RAAF members were allowing their conversations to be overheard because they knew that he would react. SQNLDR Pianta told me he thought that would be very unlikely, and that one of the men in the cafe would not have been a RAAF member because he had a beard.
…
5.On 20 September 93, SQNLDR Pianta told me, again in the presence of WGCDR Nugent, that he had decided to seek legal assistance to redress his OER assessments, and that until that process was completed he would not cooperate in any further psychological assessment, or in any assessment by a psychiatrist.
6.Given the fact that SQNLDR Pianta has been regarded as being very technically proficient and knowledgeable in the area of his profession, I note the very poor performance reflected by his last two OER evaluations. I note also the distress that SQNLDR Pianta is experiencing because of his belief that he is being investigated, and his refusal to accept assurances that he is not being investigated by either the RAAFPOL, DFB, AFP or ASIO. For these reasons, I believe that we should continue our effort to help SQNLDR Pianta despite his current unwillingness to cooperate. In my opinion, our understanding of the problem and our ability to help this officer can only be helped by our seeking specialist medical opinion and advice. With this in mind, I recommend asking a medical officer to consider referring SQNLDR Pianta to a psychiatrist for that opinion and advice.” (part of Exhibit A1)
21. A report of Dr Alan Merrifield, Psychiatrist, dated 9 November 1993, to Dr D Batagol, Senior Medical Officer, Department of Defence, refers to interviews he conducted with the applicant on 19 October 1993 and 3 November 1993 and the history he took from the applicant, and concludes:
“ The greatest probability is that he is suffering from a paranoid complex of considerable magnitude.
He of course rejects this totally.
Whilst further exploration on my part could perhaps clarify the issue, he is reluctant to subject himself to further exploration. The psychiatric intervention he considers will have greatly affected his career despite the evidence that his career had been on the line before my intervention.
There is no treatment that can be provided at this stage, for, in the case of a person without insight, no management program is possible.
Whilst there is a slim possibility he could, with reassurance about his fears, give up his beliefs, the probability is that his ideas will remain unchanged.
I would be happy to see him at any time, but believe that unless he is willing it would be an abortive exercise.” (T4, pp1-6)
22. A report of Dr Rod Milton, Psychiatrist, dated 7 February 1994 to Dr Batagol refers to the applicant’s attendance on 25 January 1994 and the history he took from the applicant, and concludes:
“ SUMMARY: Sometimes a person is thought to be suffering a paranoid disorder, when he is merely in conflict with those around him at work. In such instances the complaints of persecution are limited only to people at the workplace, and are not demonstrated in relation to neighbours, relatives, or people generally.
There is an element of that in this instance, in that Sqn Ldr Pianta told me that he gets on well with neighbours, with other parents at his children’s school, and in general does not demonstrate ideas of persecution apart from those connected with his work.
Nonetheless his perception of being persecuted at work is so widespread and unusual that it would be most unlikely to be able to be explained merely on the basis of, say, personality clashes, problems with administration, or other factors.
I believe the only way to explain Sqn Ldr Pianta’s unusual and pervasive suspicions, and his consequent perception of injustice and associated retaliatory action is that he is suffering from a gravely serious emotional disorder, a paranoid condition. He is clearly delusional, especially given the lack of support for his many unusual allegations.
…
Sqn Ldr Pianta should be medically retired. He suffers a psychiatric illness and in consequence is unfit for duty. He is unlikely to respond to treatment.” (T4, pp 11-14)
23. A report of Dr William Knox, Consultant Psychiatrist, dated 5 April 1994, to Dr Batagol states as follows:
“ …
I understood that you had referred this air force electronics officer/navigator for a third psychiatric opinion to satisfy Sqdn Ldr Pianta’s wish that another doctor review his case in addition to the efforts of the psychiatrists Dr Alan Merrifield and Dr Rod Milton.
I had for my reference copies of Dr Merrifield’s two reports of 9 November 1993 and 21 December 1993, along with Dr Milton’s report of 7 February 1994.
Dr Merrifield concluded, ‘The greatest probability is that he is suffering from a paranoid complex of considerable magnitude.’ Dr Milton expressed the view that, ‘I believe the only way to explain Sqdn Ldr Pianta’s unusual and pervasive suspicions, and his consequent perception of injustice and associated retaliatory action is that he is suffering from a gravely serious emotional disorder, a paranoid condition. He is clearly delusional, especially given the lack of support for many of his (sic) unusual allegations.’ While I was aware of these findings at the time of my meetings with Sqdn Ldr Phillip Pianta on 15, 18 and 23 March, I did not immediately accept the inevitability of these diagnoses and set out to hear Sqdn Ldr Pianta’s story afresh and form my own conclusions.
I met with Sqdn Ldr Pianta for 45-minutes on the first occasion, but then when it was apparent that there was much detail in the history he was presenting I asked him to see me again, and had a two and a half hour interview with him on 18 March, after having spent a further 30-minutes reviewing his documents. Sqdn Ldr Pianta took it upon himself to visit me on 23 March 1994 and on that occasion we spoke for approximately 15-minutes.
There is no question of any psychiatric illness in this man’s earlier history and Dr Milton has reviewed his life in his report.
Sqdn Ldr Pianta had a successful, active air force career serving as an electronics officer before being assigned staff duties in Canberra where I believe his job involved assessing and acquiring electronic equipment for the Airforce.
This man’s problems arose following critical Officer Evaluation Reports in 1991 and 1992. Prior to this his reports had been satisfactory. He told me that the 1991 OER report was ‘critical but justified’ while he found the 1992 report ‘offensive and biased’.
Sqdn Ldr Pianta told me that he felt his efforts in the year prior to the 1991 report were ‘below par’. He had been promoted, experienced a job change and was working in a new location. He described a learning curve period during this time.
During the period assessed in the 1992 report he believes that his work was ‘middle of the road, satisfactory’, and he was ‘producing output’. He went on to explain to me that it typically takes five years to bring in new capabilities to the Airforce but he had introduced new equipment in his area of expertise over a period of just 18 months.
The difficulties experienced by Sqdn Ldr Pianta appeared to have arisen in the context of these negative Officer Evaluation Reports.
Sqdn Ldr Pianta took exception to certain expressions in the 1992 OER when references were made to his mental health by non-medical senior officers. As a result of his complaints regarding this, stickers were placed on his OER advising future promotion boards to disregard references to the member’s mental state or recommendation for counselling. Sqdn Ldr felt this was insufficient and that his career would be jeopardised by the unfavourable comments against him.
Sqdn Ldr Pianta claimed that there was a personal conflict between himself and the two Wing Commanders who had reported on him, and believes that the negative 1992 report in particular arose on account of these conflicts.
At the first interview with me Sqdn Ldr told me of how he feels that his career has been ‘blown out of the water’ by the psychiatric reports obtained about him. He strongly holds the view that he has no psychiatric or medical condition. He further told me that he has approached the Minister for Defence requesting a full enquiry into what he believes have been investigations against him both within the Royal Australian Air force by a civilian agency. He has not been able to accept reassurances from the RAAF that no investigation has been carried out against him. His belief is that the authority for any investigation into him has come from a higher level than the RAAF itself and that the RAAF has not been at liberty to reveal to him that indeed such and investigation has taken place.
Sqdn Ldr (sic) went on to tell me that if any inquiry carried out at the direction of the minister finds that there has indeed not been any investigation into him he will accept this finding as indicating that his RAAF career is finished, although he told me he will continue to believe that there has indeed been such an investigation held into him and that documents concerning his case are held at some location.
Sqdn Ldr Pianta reiterated his claims to me in the following words, ‘I have been subject to a review by a Commonwealth agency … on several occasions … I hold that view on account of what I have observed or heard … it may be that it is my powers of observation that are at issue here to be resolved.’
The present mental status examination I carried out in regard to Sqdn Ldr Pianta’s behaviour and communications on 15 March 1994 revealed no evidence of psychiatric disturbance other than the fact that there may have been delusional beliefs present. Some aspects of Sqdn Ldr Pianta’s story were suspicious of paranoid delusional content but at this point in my inquiry I had not been able to clearly determine that this man was delusional.
A complicating factor in the history of Sqdn Ldr Pianta’s difficulties is the apparent leaking of information from one of his OER assessing officers, via this man’s wife to Sqdn Ldr Pianta’s wife, to the effect that they were concerned about his health. This unethical incident, apparently confirmed by Mrs Pianta, although I have not spoken to her myself, has probably given some substance to Sqdn Ldr Pianta in regard to his wider suspicions.
Squadron Ldr Pianta believes that he has been ‘subject to indecision and procrastination’ in regard to formal complaints he has made to the RAAF regarding his belief that he is being investigated. Although a number of the claims that he has made have been investigated and found to be without substance there are apparently several matters which have not yet been fully explored to Sqdn Ldr Pianta’s satisfaction.
This man told me that he ‘doesn’t have an ongoing sense of being investigated; there is no pervading sense of someone watching me all day, everyday’. However he feels that there have been periodic incidents ‘highlighted through my observations’.
Sqdn Ldr Pianta has come to believe that a Wing Commander … had reported him for disclosing sensitive material in the Edinburgh RAAF Base’s officers mess on one occasion in July or August of 1992 I believe. Although Sqdn Ldr Pianta was never formally questioned by the RAAF regarding this he told me that he overheard and saw a ‘debriefing session which occurred later between Wing Commander … and a civilian in the office that Sqdn Ldr Pianta shared with Wing Commander …. Although Sqdn Ldr Pianta told me that it was perfectly apparent to the two other men that he was there, they spoke in confidence about him as though he were not present, to the effect that the civilian reassured the Wing Commander saying, ‘We don’t consider there is a problem’. Sqdn Ldr Pianta went on to tell me that the civilian apparently checked with Wing Commander … whether or not Sqdn Ldr Pianta could overhear their conversation, but was reassured that he could not since there was a relatively noisy air conditioner operating in the room. Nonetheless Sqdn Ldr Pianta claims to have overheard this conversation.
I felt that such a scenario was unlikely but not impossible. Sqdn Ldr Pianta believed that no attempts been (sic) made to confirm or deny this conversation.
Sqdn Ldr Pianta told me of other circumstances in which his neighbours came to him in November of 1992 and told him that they had been questioned on three occasions by RAAF police, reportedly telling Pianta that this had ‘scared the shit out of them’. However when Sqdn Ldr Pianta later again spoke to his neighbours they denied that there had been such inquiries. The service police did talk to the neighbours on one occasion but this was only subsequent ot Sqdn Ldr Pianta’s allegations. When I asked him how he could explain the neighbours’ change of story he told me that he could not explain it and would have to ‘pass on that….’.
In yet another episode Sqdn Ldr Pianta came to believe that Wing Commander … accused him to (sic) being a homosexual in February of 1992 at a time when this subject was topical within the RAAF and new policy regarding it was being made. He believes that a written report was submitted regarding him although he has not seen it. He is aware of these occurrences only, as he put it, ‘anecdotally’. Sqdn Ldr Pianta has taken action through Freedom of Information channels to determine if a report on this subject was lodged concerning him. He is still awaiting the RAAF’s attention to this request I understand.
Sqdn Ldr Pianta believes that the RAAF would have difficulty in complying with the FOI request since it would ‘open a pandora’s box … it would also impinge on other statements and allegations made against me’.
Yet again on either the 3rd or 10th of February 1994 Sqdn Ldr Pianta believes that a ‘member of a civilian organisation was tasked by a senior RAAF officer’ to investigate an allegation that Pianta was the subject of. Sqdn Ldr Pianta went on to tell me that the ‘allegation was that I had passed sensitive material through an Israeli company to the government of that country. The civilian also noted, in fact highlighted, the fact that his organisation had been asked by a third agency to do the same thing.’
This conversation apparently took place in an office next to Sqdn Ldr Pianta’s, and he had been able to hear ‘every word’ through the wall.
In a precursor to this incident Sqdn Ldr Pianta had come to believe that the Israelis had told an Air Commodore … that they knew more than they should have, and had invited the Air Commodore to conduct a survey of his staff, including Sqdn Ldr Pianta, who had denied providing any information to the Israelis.
Sqdn Ldr Pianta went on to tell me of the incident that he has described in his 14 February 1994 ‘Incident Report’ which he has submitted to the RAAF concerning discussions between a Wing Commander … and an intelligence officer concerning these Israeli matters. These most recent events apparently occurred in Sydney where Sqdn Ldr Pianta was visiting in the course of his duties.
Sqdn Ldr Pianta told me that it is his ‘clear understanding that the civilian organisation involved has written to the Minister concluding their work’. This information came to Sqdn Ldr Pianta’s knowledge when he was incidentally in Parliament House on February 10th in the public gallery and overheard Mr … in conversation on this subject to a Member of Parliament. Sqdn Ldr Pianta understood them to say to effect that ‘ASIO had reported to the Minister for Defence, Science and Personnel that they had no problem with Pianta’.
At this point in my inquiries I found it quite impossible to believe the string of incidents which had occurred regarding Sqdn Ldr Pianta, and formed a belief that he did indeed hold paranoid beliefs about himself and his work environment.
Sqdn Ldr Pianta further told me that he ‘expects to be sacked, and resents being lied to and lied about’.
It is my view that even if there is substance to some of what Sqdn Ldr Pianta has told me concerning the nature of his work and certain investigations into him, although I have no evidence that indeed such have taken place, the descriptions of the conversations that he has reputedly overheard, and the unlikely environments in which these have taken place, leads me to believe that they are figments of Sqdn Ldr Pianta’s imagination by and large.
I must concur with the findings of Drs Merrifield and Milton in regard to Sqdn Ldr Pianta.
Sqdn Ldr Pianta came to visit me on 23 March 1994 and asked that as far as I was able to I should allow the administrative investigation he has initiated with the Minister to proceed. On this occasion I informed Sqdn Ldr Pianta that I believed that he was in all probability suffering from a paranoid condition in regard to his beliefs since I could not accept a good deal of what he had told me. Nonetheless I agreed with his request that I should review my opinion in regard to his paranoid condition if after full investigation by the Minister his contentions were indeed correct.
Sqdn Ldr Pianta told me that there was ‘a ministerial in place and he wanted a fair go’.
I believe that it is in the interest of Sqdn Ldr Pianta’s ultimate health for him to feel that there has been a satisfactory investigation into his allegations, and I think it is not unreasonable of him to expect that this should be undertaken by an outside objective agency of sufficient authority to get to the bottom of things. If this is not done then Sqdn Ldr Pianta’s beliefs will continue to drive him to seek a full explanation of his beliefs. While I do not believe that he will necessarily change his beliefs if there is a negative finding arising from any inquiry, he will accept that the matter has been investigated as far as it is ever likely to and not further press his case. He told me how important it was for him to ‘stick it as far as I can for resolution … to expend my options … it is important for me’.
I would make a diagnosis of Delusional Disorder of Persecutory Type as listed under code 297.01 in DSM-III-R. Sqdn Ldr Pianta meets the diagnostic criteria for this condition. There is no evidence of associated psychiatric illness in this man’s case. He is not suffering from schizophrenia.
The condition is likely to continue indefinitely, and due to his lack of insight Sqdn Ldr Pianta will be most unlikely to seek treatment. If he were to seek treatment the prescription of major tranquilliser medication may reduce the intensity of his beliefs, but it is probable that even with such treatment he would continue to hold to the beliefs that have grown in his mind in recent years.
Away from his workplace, and his dissatisfactions with it, however he may be able to settle into a reasonably stable life pattern with his paranoid beliefs encapsulated and not to a great extent interfering with other areas of his personal life. However the problems could conceivably spill over into his wider personal environment causing future difficulties and the need for psychiatric intervention.” (T5, pp31-36)
The evidence of the medical witnesses
Dr John Kemp
24. Dr Kemp, Consultant Psychiatrist, has prepared several reports regarding the applicant as follows.
25. Dr Kemp’s initial report, dated 16 August 2005, is addressed to the DVA and states as follows:
“ Thank you for asking me to interview and report on Mr Phillip Pianta who attended for consultations to prepare this report on 13 July 2005 and 2 August 2005. I also had the opportunity to interview his wife and obtain a collateral history.
Mr Pianta provided a very large collection of documentation regarding his case and legal difficulties he has experienced. These included reports from a previous Psychiatrist, Dr Alan Merrifield, dated 12 July 1994 (sic) and 9 November 1993, Dr William Knox dated 5 April 1994, Dr Rod Milton dated 7 February 1994 and the Medical Practitioner employed by Australian Government Health Service, Dr Gary Sturdy dated 12 May 1997.
DIFFICULTIES IN ASSESSMENT
The assessment of Mr Pianta was complicated by his lack of insight into his suffering from any mental disorder. Despite previous reports from Psychiatrists and his discharge from military service on grounds of severe psychiatric illness he does not accept that he is mentally ill.
PRESENTING COMPLAINTS
Mr Pianta has a wide range of complaints about matters that occurred during his military service and subsequent to discharge. He believes that he has been subjected to conditioning, hypnosis, manipulation by security agents, deceit and fraud by the Commonwealth, his daughter has been sexually abused by Commonwealth Agents, that Defence and Security Agents have interfered with his children at school and that he has been deliberately chemically contaminated.
BACKGROUND HISTORY
Mr Pianta was born in Collie in Western Australia and his father was a coalminer and his mother a housewife. He was the fourth child of five siblings and described having had a happy childhood with a rural upbringing. His father died in November 1992 from heart disease. Mr Pianta left Collie at age sixteen to go to Perth and commence an apprenticeship with the PMG. He then joined the RAAF as a radio technician and completed training at Laverton. He was posted to Amberley and Williamstown and was selected for officer training. He was a navigator and then cross trained into electronics and electronic warfare and interception.
Mr Pianta is married, his wife does not work and he has three children, a daughter and two sons. The middle son suffered from Meningococcal Meningitis in about 1991 and was left with residual neurological deficits including hearing loss in one ear and scoliosis.
Mr Pianta has lived in …, Western Australia, since 1994 with his family.
MEDICAL HISTORY
Mr Pianta denied any significant medical problems and takes no medication. He told me he strives to be physically fit by walking a few kilometres five times a week.
PSYCHIATRIC HISTORY
Mr Pianta has been reviewed by Psychiatrists in 1993 and 1994 with a diagnosis of Paranoid Psychosis or ‘delusional disorder’. He was discharged from service with the Airforce on psychiatric grounds.
MILITARY SERVICE
During his service in the RAAF Mr Pianta rose to the rank of Squadron Leader. He told me he was limited in what he could tell me about aspects of his service due to security considerations. He told me his earliest difficulties with any psychological problems appear to have occurred in about the mid 1980s when he told me he attended a technology course in Melbourne to assess its suitability for trainees. Essentially this was an electronic warfare course run by the Defence Department of a classified nature. He found that he became very stressed and unsettled when he could not keep up with the technological aspects of the course. At other times during the 1980s he was involved in crewing P3 Orions and was a navigator. He reported having done numerous long distance flights over a one month period with broad ocean surveillance of the South China seas and India. In about 1990 he was deployed from Guam and informed me that he was involved in further broad ocean surveillance including Guam, Japan, Fiji and Hawaii. He also reported having done four day runs crewing aircraft around Australia doing surveillance missions. He had a four year stint instructing training school for air crew. He was posted in Canberra for four years between about 1989 and 1993 as an electronics warfare expert.
Mr Pianta reported having become stressed and distressed and his wife noticed the commencement of some paranoid thinking in about 1990 immediately following a very brief deployment to Japan where he said he was involved in establishing links with American security organisations. His deployment to Japan was curtailed as his son became very ill with Meningococcal Meningitis and he was repatriated to Australia on compassionate grounds very rapidly. His wife noticed that following this he began to develop evidence of paranoid thinking and unusual behaviour. Notes from Dr William Knox indicate that Mr Pianta appears to have begun receiving critical officer evaluation reports in about 1991 and by 1993 he was clearly having significant psychiatric difficulties with paranoid thinking and was reviewed by a number Psychiatrists and diagnosed as having Paranoid Disorder.
COLLATERAL HISTORY from wife
Mrs Pianta told me that her husband has never accepted that he suffers from a psychiatric disorder. He believes in his paranoid delusions implicitly and over the years since his discharge from the RAAF has gone on to develop other psychotic symptoms. His delusions have become more florid and widespread and for instance he, at times, believes that there is a firefighter who has come into the house in the middle of the night and given him cardiac massage, that he hears voices talking to him to which he responds at times and he believes his home has been bugged. He has engaged Solicitors who have found it impossible to take instructions from him.
PHYSICAL EXAMINATION
A physical examination was not performed.
MENTAL STATE EXAMINATION
On mental state examination Mr Pianta was a bald headed, bespectacled man who had a very intense manner. He grimaced frequently. He showed some constriction in affective responses particularly when discussing his delusional beliefs regarding the persecution from which he has suffered. He denied experiencing hallucinations during the interview and spoke freely about his paranoid delusions regarding the Commonwealth, persecution, surveillance and interference with his family. His cognitive functioning was intact to standard clinical testing. He denied any suicidal or homicidal ideation.
DIAGNOSIS
In my opinion Mr Pianta is suffering from Paranoid Schizophrenia. It is probable that his initial symptoms of this were restricted to those of a paranoid and delusional nature but there has been deterioration with the development of hallucinations over recent years which therefore lead one to diagnose Schizophrenic Disorder. There is also evidence of some negative symptoms these days with some disorganisation of speech and thinking. He fulfils the criteria for Schizophrenia outlined in DSM-IV as follows:
CRITERIA FOR DIAGNOSIS OF SCHIZOPHRENIA
ACharacteristic symptoms: Two or more of the following, each present for a significant portion of time during a month period.
1. delusions
2. hallucinations
3. disorganised speech
4. negative symptoms, ie affective flattening, alogia, avolition.
BSocial/occupational dysfunction: For a significant portion of the time since the onset of the disturbance, one or more major areas of functioning such as work, interpersonal relations, or self care are markedly below the level achieved prior to the onset.
CDuration: Continuous signs of disturbance persist for at least six months. This six month period must include at least one month of symptoms that meet Criterion A and may include periods of prodromal or residual symptoms. During these prodromal or residual periods, the signs of the disturbance may be manifested by only negative symptoms or two or more symptoms listed in Criterion A present in an attenuated form.
DSchizoaffective and Mood Disorder exclusion: Schizoaffective Disorder and Mood Disorder with Psychotic Features have been ruled out because either (1) no Major Depressive, Manic, or Mixed Episodes have occurred concurrently with the active phase symptoms; or (2) if mood episodes have occurred during active phase symptoms, their total duration has been brief relative to the duration of the active and residual periods.
ESubstance/general medical condition exclusion: The disturbance is not due to the direct physiological effects of a substance (eg a drug of abuse, a medication) or a general medical condition.
FRelationship to a Pervasive Developmental Disorder: If there is a history of Autistic Disorder or another Pervasive Developmental Disorder, the additional diagnosis of Schizophrenia is made only if prominent delusions or hallucinations are also present for at least a month.
DISCUSSION REGARDING MATTERS AROUND THE STATEMENT OF PRINCIPLES CONCERNING SCHIZOPHRENIA IN RESPECT OF MR PIANTA’S CLAIM
I have reviewed Mr Pianta’s history and documentation in an effort to clarify any service or non service related matters, as per Statement of Principles, that may have contributed to onset or worsening or permanent worsening of his Schizophrenic Disorder and these are listed chronologically below.
1.Mr Pianta’s reported participation in the mid 1980s in Melbourne in the evaluation of technology course which he was unable to keep up with. Although this is clearly related to his service there would be some doubt about whether it meets the criteria in the Statement of Principles that it was a severe psychosocial stressor.
2.Mr Pianta was recalled from overseas deployment in Japan on compassionate grounds following the severe Meningococcal illness of his son in about 1990. This clearly meets the SOP criteria for a severe psychosocial stressor, ie ‘serious injury in close friend or relative’ but it would be up to the Department of Veterans’ Affairs to determine how much of this stressor is service related.
3.Towards the end of his service in the RAAF, Mr Pianta informed me, his flying status was rescinded on psychiatric grounds and that this intensely distressed him. This is a potential stressor that the Department of Veterans’ Affairs will need to determine whether or not it crosses the threshold for severe psychosocial stressor as it at least rates consideration under the category ‘loss of employment’.
4.Compulsory discharge from the RAAF on psychiatric grounds. Mr Pianta’s psychiatric condition has clearly deteriorated since that time and he has been unemployable and has led a very reclusive life. This stressor meets the criteria for a severe psychosocial stressor ‘loss of employment’ along with major financial problems. However it would be for the Department of Veterans’ Affairs to determine how much Mr Pianta’s loss of employment in the RAAF was a service related matter.
5.More generally, Mr Pianta’s claim requires consideration under factor 5D ‘inability to obtain appropriate clinical management for Schizophrenia’. The difficulties that Mr Pianta experienced in obtaining appropriate clinical management relate to the nature of his Paranoid Psychosis/Schizophrenic illness. It would appear on reviewing the psychiatrist’s notes from 1993/94 that Mr Pianta totally lacked insight into the fact that he suffered from a psychiatric disorder that may have been to some extent treatable. Because he lacked insight into his disorder he refused or was never offered treatment in the RAAF and has never obtained appropriate clinical management for his disorder. His inability to obtain appropriate clinical management was due to the nature of Schizophrenic illness.
…
RECOMMENDATIONS FOR TREATMENT
Ideally, Mr Pianta should be treated with antipsychotic medication. He should be followed up by a Consultant Psychiatrist and be assessed by a multi disciplinary psychiatric team for treatment and rehabilitation. This is extremely unlikely to occur due to Mr Pianta’s total lack of insight and non acceptance of his psychiatric diagnosis. It may be that in some point in the future if Mr Pianta’s psychiatric condition deteriorates further and he meets the criteria for involuntary assessment and treatment under the Mental Health Act that he is compelled to have treatment.
PROGNOSIS
The prognosis is extremely poor. Mr Pianta has longstanding delusions, hallucinations and entrenched psychotic phenomena. He has extreme vocational and interpersonal deficits. Even with optimal treatment he is likely to be left with a very significant burden of ongoing psychiatric symptoms and delusional thinking.
…” (T11)
26. Dr Kemp provided a report, dated 30 March 2007, to the applicant’s former advocate as follows:
“ Thank you for asking me to comment about Mr Pianta’s psychiatric condition. In my opinion Mr Pianta is most properly diagnosed as suffering from Paranoid Schizophrenia. I am of the opinion that the onset of this Disorder occurred some time in 1992 or slightly earlier at which time he appears to have developed paranoid ideas, beliefs, delusions and behaviour during his service in the RAAF. It is noteworthy that he was reviewed between 1992 and 1994 by a number of Psychiatrists who made the rather general diagnosis of ‘paranoid psychosis’. This is not a specific diagnosis but certainly includes the possibility of paranoid schizophrenia, delusional disorder and the like. I note that one of my colleagues has reviewed Mr Pianta in 2006 and came to the conclusion he is suffering from a delusional disorder, again probably with onset in about 1992. Mr Pianta has agreed to treatment with antipsychotic medication and has had a trial of taking Risperidone with no objective improvement in his symptoms. He is currently undertaking a trial of Aripiprazole and experiencing some side effects on this medication with excessive sweating but no useful benefit to date. Please do not hesitate to contact me if I can be of any further assistance.” (T16, p78)
27. Dr Kemp provided reports dated 19 January 2007, 26 June 2007 and 25 September 2007 to the applicant’s general practitioner, Dr H Meyer. Dr Kemp’s report of 19 January 2007 states:
“ Thank you for asking me to review Mr Phillip Pianta who attended today. As you are aware, the Department of Veterans’ Affairs asked me to see Mr Pianta back in August 2005. Mr Pianta told me that he has had a trial of taking low dose Risperidone and in effect took 1 mg per day for a couple of months. He reported that he did not notice any effects at all from the medication either adverse or beneficial. Mr Pianta has indicated that he is prepared to have another trial of taking psychotropic medication and will do this under supervision from you and me and allow his wife to provide some feedback about whether or not there is some improvement in his functioning at home. He is planning a trip to Thailand in the immediate future and told me he will come and see you upon his return from the trip to get a prescription and start Risperidone. I would suggest starting him on 1 mg nocte and I will arrange to see him in two weeks or so after he has commenced on this and would plan to escalate the dose by 1 mg every two weeks to reach a target dose of 4 mg nocte. Mr Pianta has indicated that he is prepared to have a trial of medication of 4 mg per day of Risperidone for three months on an experimental basis to see whether or not it produces any benefit for him. From his point of view his most distressing symptoms are those of being preoccupied by his thoughts and inability to attend to routine tasks such as building a veranda for his daughter and attending charity functions. If Risperidone fails to produce any useful benefit at higher dose rates, there is of course the possibility of trialling out some of the more modern atypical antipsychotic agents with little side effects such as Aripiprazole.”
Dr Kemp’s report of 26 June 2007 states:
“ This is to let you know that I reviewed Phillip Pianta today and had the opportunity to interview his wife without his presence. Phillip has been taking Aripiprazole at a dose rate of 15 mg per day and according to him and his wife, has been taking this quite religiously. Initially he had some side effects from Aripiprazole with excessive sweating but this has settled in the past couple of months. At present Phillip does not notice any particular adverse side effects from Aripiprazole but also is only aware of some very subtle improvements in his emotional status. He continues to maintain the validity of his delusional system and experiences, however in terms of other more subtle markers of psychosis, he will admit that he has had a little more energy and drive in the past six weeks and in fact has been very busy helping his in-laws pack up their house and shift out. He has also returned to riding a pushbike eight kilometres every day although in the past used to enjoy racing bikes. His wife reports much more favourable effects on his behaviour and stated that he is less intense and the couple have had little in the way of arguments around his delusional beliefs and she feels that he is generally more calm and more level. She has noticed that he is sleeping better, drinking less beer and a little more enthusiastic.
Given that there seems to be some subtle signs of improvement over the course of the past three months, even though his entrenched delusional system has not been altered, it is my view that it is well worthwhile him continuing on treatment with Aripiprazole just to maintain the level of benefit he has achieved to date.
I have arranged to review Phillip again in about three months’ time.”
Dr Kemp’s report of 25 September 2007 states:
“ I reviewed Phillip Pianta today. Phillip discontinued taking Aripiprazole some three weeks ago. He did not seem to have any specific complaint about any side effects but told me he is quite prepared to try another antipsychotic drug. I have therefore prescribed him Zeldox at a dose rate of 40 mg daily for one week, increasing to 40 mg bd. I will be reviewing him again in about six weeks time or earlier if required.” (Appendix 2 to Exhibit R1)
28. Dr Kemp provided a report, dated 17 December 2007, addressed to Military Rehabilitation and Compensation Service, which states as follows:
“ Thank you for requesting a psychiatric report regarding Mr Phillip Pianta.
Mr Phillip Pianta has previously been referred to me by the Department of Veterans’ Affairs for a psychiatric report and has also been referred by his General Practitioner and consulted me on the following occasions:
19/01/2007, 30/03/2007, 10/04/2007, 24/04/2007, 26/06/2007, 25/09/2007, 20/11/2007, 05/12/2007 and 12/12/2007.
I have also had the opportunity to interview Mr Pianta’s wife and obtain a collateral history from her. I have also had the opportunity to review copious documentation regarding Mr Pianta’s military career and psychiatric treatment in the military and subsequent treatment. I have perused a report prepared by Dr Victor Cheng dated 6 July 2006.
The bulk of the psychiatric report regarding Mr Phillip Pianta is contained in my report prepared for Department of Veterans’ Affairs dated 16 August 2005 …. Subsequent to my preparing the report for the Department of Veterans’ Affairs in 2005, Mr Pianta has attended for treatment on referral from his General Practitioner, Dr Hermann Meyer. I enclose copies of correspondence to Dr Meyer in 2007 detailing his treatment. … In essence he has had trials of three antipsychotic medications.
…
Disclaimer
In my opinion Mr Phillip Pianta has a difficult psychiatric condition to assess. He does not accept that he is experiencing delusions, false beliefs or hallucinations and holds to the reality and veracity of all these mental experiences and perceptions.
Due to his delusions, which are centred around experiences of surveillance and persecution from Government agencies, it has been difficult over the years for Mr Pianta to cooperate with those agencies to establish if there are any entitlements as he invariably perceives any interactions with Government agencies as some ulterior motive on behalf of the agency.
Any comments about Mr Pianta’s case contained in this report should not be construed as suggesting any lack of skilled care and due consideration by my psychiatry colleagues and/or the military.
It is apparent from a thorough review of Mr Pianta’s case that he developed the onset of a serious psychiatric condition whilst serving as an Officer in the RAAF. His psychiatric condition has continued to the present day and has proved quite disabling in that he has remained unemployed (and in my opinion unemployable) and his psychiatric disorder has had a serious impact on numerous aspects of his life including his ability to engage in social relationships, leisure activities and family relationships.
There is, however, a difference of opinion between Dr Cheng and myself regarding the specific psychiatric diagnosis attributable to Mr Pianta. I prefer a diagnosis of Schizophrenia whereas Dr Cheng opts for a diagnosis of Delusional Disorder. It is likely that Dr Cheng preferred a diagnosis of Delusional Disorder because, in the information available to Dr Cheng, there was no mention that Mr Pianta appeared to have experienced auditory and/or visual hallucinations over a period of time.
…
In my opinion there is evidence that Mr Pianta experiences auditory and possibly visual hallucinations. I accept that he is a very difficult subject to interview given his lack of insight and that even when closely questioned he would not admit to experiencing auditory hallucinations as he perceives these experiences as being reality based.”
[Dr Kemp then referred to documentary material which, he opined, indicated that the applicant had been experiencing auditory and visual hallucinations in the period from October 1992 to December 1994, and continued:]
“ CAUSATION
I turn next to the question of whether or not Mr Pianta’s psychiatric condition and associated incapacity was principally caused by his military employment. In considering this matter the question is complicated by issues around the exact psychiatric diagnosis applicable to Mr Pianta. However, for the purpose of considering the matter of causation, I shall assume that he is suffering from either Delusional Disorder or Paranoid Schizophrenia. In general, both disorders seem to be associated with similar aggravating and precipitating factors, have a cross-over of symptoms in common and at times have a similar prognosis.
In considering the matter of causation I refer to the Statement of Principles for Schizophrenia, Balance of Probability, issued by the Department of Veterans’ Affairs, paragraph 5. Factors
(a)experiencing an event perceived as a severe psychosocial stressor within the 30 days immediately before the clinical worsening of schizophrenia; or
(b)using cannabis within the six months immediately before the clinical worsening of schizophrenia; or
(c)using cocaine within the 30 days immediately before the clinical worsening of schizophrenia; or
(d)inability to obtain appropriate clinical management for schizophrenia.
In my opinion I conclude that the onset of psychiatric illness in Mr Pianta’s case was not related to circumstances of his military service.
AGGRAVATION
Turning to the question of whether Mr Pianta’s employment in the military materially aggravated his psychiatric disorder, …
[Dr Kemp referred to various of the applicant’s service records, including the abovementioned psychiatric reports of Drs Merrifield, Milton and Knox, and continued:]
“ … These are factors (ie the making of a psychiatric diagnosis by lay members subsequently requiring administrative action by Pianta to have references stricken from his record and the issue of breach of confidentiality in respect of his wife) that could be aggravating circumstances during his military service….
These matters, at least the initial one in respect of the making of a psychiatric diagnosis by lay personnel are confirmed in reality in the records available in Mr Pianta’s folio of documents. it seems to me that it is quite plausible that Mr Pianta, having gone on to develop a serious psychiatric illness with delusions, has incorporated this matter into his delusional system. It has now become permanently entrenched.
…
It is evident during subsequent courses that Mr Pianta’s psychiatric condition since 1993/94 has gone on to incorporate persecutory delusions and ideas relating to the security status and the belief that he is continuing to receive surveillance from military authorities and ASIO because of this into his paranoid delusional system.
I am of the opinion that the circumstances of Mr Pianta’s employment in the RAAF with the need for security measures and the need for his termination of employment due to him being considered a security risk have contributed to the nature, form and type of the delusions he has gone on to develop and maintain to this day.
FAILURE TO TREAT:
Next I turn to whether the failure to treat Mr Pianta has exacerbated his condition….
Referring to the report of Dr Cheng:
‘ Do you believe that the treatment undertaken to date has been the most appropriate for the condition? Comment on the nature and effectiveness of treatments in terms of condition, symptoms and function. Can you advise of any future treatments which could be beneficial for the claimant to improve the condition, symptoms or functioning?
As stated above, it does not appear that Mr Pianta has had any psychiatric treatment to date. It would appear that he has only had a number of psychiatric assessments and although treatment has been recommended, he has refused this.
A trial of antipsychotic medication is definitely indicated, such as Risperidone at a dose of 4-6 mg per day or Olanzapine at a dose of 10-20 mg per day. This would be beneficial by reducing his paranoia and delusional beliefs.
Please note that due to the length of time he has had symptoms, it is likely that a number of his beliefs are now entrenched and are less amenable to treatment. It is likely that even if treatment was successful, it would stop any further experiences of feeling that he was under surveillance but would be unlikely to affect his beliefs regarding his treatment within the RAAF which now has the characteristics of a memory.
Additionally please note that in general, Delusional Disorder is less amenable to treatment with medications than other psychotic disorders. A significant percentage of people with delusional disorders have symptoms that do not respond to antipsychotic treatment.
If treatment was successful then it is likely that he may be able to look at other employment. It is not likely that he will be able to return back to the armed services because of the various security issues that are raised with people with mental illnesses serving in the armed forces. Additionally it must be noted that the period of time for which he has been unemployed is significant and therefore even if he was symptom-free, this reduces the likelihood that he will be able to return to employment in the civil sector.’
I concur with Dr Cheng in all of the above matters, namely Mr Pianta, up until the date of Dr Cheng’s report, had not had any psychiatric treatment but a trial of antipsychotic medication was definitely indicated and that due to the length of time that he has suffered from the symptoms and not been treated, there is considerable entrenchment of his disorder and that delusional disorder is less amenable to treatment medication than other psychotic disorders.
I conclude that, due lack (sic) of treatment, Mr Pianta’s psychiatric condition has been permanently worsened and exacerbated. I do appreciate that the Military Rehabilitation and Compensation Group might not necessarily be bound by determinations and principles outlined by the Department of Veterans’ Affairs and turn next to a subsidiary issue regarding whether any effective treatment was available for Mr Pianta’s Delusional Disorder/Schizophrenia during his period of military service and following his discharge and what means might have been taken to facilitate that treatment.
52. Accordingly, the Tribunal is reasonably satisfied that the factor set out in para (d) of cl 5 of the SoP, namely:
“inability to obtain appropriate clinical management for schizophrenia”
exists in the applicant’s case.
53. The question then arises as to whether the applicant’s “inability to obtain appropriate clinical management for schizophrenia” is “related to” his defence service, as required by cl 4 of the SoP. In accordance with s 196B(14) of the VE Act, that inability will be “related to” the applicant’s defence service if (inter alia):
· it arose out of, or was attributable to, that service; or
· it was contributed to in a material degree by, or was aggravated by, that service.
The Tribunal is, however, not reasonably satisfied, having regard to the whole of the evidence before it, that the applicant’s abovementioned mental state, which was the sole cause of his “inability to obtain appropriate clinical management for schizophrenia”, itself arose out of, or was attributable to, or was contributed to in a material degree by, or was aggravated by, his defence service, or was otherwise “related to” that service, for the purposes of cl 4 of the SoP: cf Brew v Repatriation Commission (1999) 56 ALD 403 at 408.
54. It follows that the SoP does not uphold the contention that the applicant’s paranoid schizophrenia condition is, on the balance of probabilities, connected with his defence service, for the purposes of s 120B(3)(b) of the VE Act. Pursuant to s 120B(3) of the VE Act, therefore, the Tribunal is not reasonably satisfied, for the purposes of s 120(4) of that Act, that the applicant’s paranoid schizophrenia condition is a defence-caused disease, within the meaning of s 70(5) of that Act.
55. Accordingly, the Tribunal concludes that the applicant’s paranoid schizophrenia condition is not a defence-caused disease, within the meaning of s 70(5) of the VE Act.
Decision
56. For the above reasons the Tribunal affirms the decision under review.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr P A Staer, Member
Signed: :...............[sgd E Jordan]........................
Associate
Date of Hearing 19 November 2008
Date of Decision 14 January 2009
Representative of the Applicant Mr J DaltonRepresentative of the Respondent Mr C Ponnuthurai
Department of Veterans' Affairs
0
2
0