Potter and Repatriation Commission
[2003] AATA 808
•15 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 808
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/119
VETERANS' APPEALS DIVISION ) Re DENNIS POTTER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr M Allen, Member Date15 August 2003
PlacePerth
Decision The decision of the Veterans’ Review Board of 13 February 2002, which affirmed the decision of the Repatriation Commission of 10 January 2000, is set aside and in substitution therefor the Tribunal decides that the applicant is entitled to disability pension for generalised anxiety disorder and irritable bowel syndrome, with effect from 11 July 1999.
….........(sgd M Allen)..................
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – disability pension – whether disease caused by war service – generalised anxiety disorder – anxiety disorder not otherwise specified – irritable bowel syndrome – whether reasonable hypothesis established connecting diseases to war service
Veterans’ Entitlement Act 1986 ss 9, 120, 120A
Statement of Principles Instrument No. 48 of 1994
Statement of Principles Instrument No. 103 of 1996
Statement of Principles Instrument No. 1 of 2000
Repatriation Commission v Deledio (1998) 46 ALD 193
Re Ogden and Repatriation Commission [2002] AATA 512
Repatriation Commission v Gorton (2001) 110 FCR 321
REASONS FOR DECISION
15 August 2003 Mr M Allen, Member 1. This is an application by Mr Potter for review of a decision made by the Repatriation Commission (“the Commission”) on 10 January 2000, which was reviewed by the Veterans’ Review Board (“the Board”) with the decision of the Board being made on 13 February 2002.
2. At the hearing Mr Potter was represented by an advocate, Mr Peter Lofdahl, and the respondent was represented by Mr Ponnuthurai. The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1 – T27) and also the exhibits tendered during the hearing by the applicant (A1 – A10) and by the respondent (R1 and R2). Mr Potter and his wife gave oral evidence at the hearing, as did Dr Anthony Mander.
Background
3. The following is the uncontested background evidence on which the following finding of fact can be made.
4. Mr Potter was born in February 1946 and served in the Australian Army between July 1968 and July 1970. He rendered operational service in Vietnam from 9 April 1969 to 9 April 1970.
5. On his discharge in 1970 Mr Potter had an accepted war-caused disability described as “synovitis biceps tendon right knee”.. At that time a claim for asthma as being war-caused was rejected.
6. In December 1998 Mr Potter made an application for an increase in his then disability pension on the basis of a claim for asthma and tinnitus. In May 1999 a delegate of the Commission rejected the claim for asthma but accepted the claim for “bilateral sensorineural hearing loss with tinnitus” with effect from 10 September 1998.
7. In October 1999 Mr Potter applied to have accepted as war-caused the conditions of generalised anxiety disorder (“GAD”), irritable bowel syndrome (“IBS”), tinea, and psoriasis. On 10 January 2000 a delegate of the Commission accepted the claim for tinea but refused the claim for the other three conditions.
8. In March 2000 Mr Potter applied to the Board for review of the decision in relation to GAD (T13) and T14 records that a representative of the Board contacted Mr Potter and ascertained that he wished to have the review also extend to the claim for IBS. No review has been sought in relation to the claim for psoriasis and that issue was not before this Tribunal.
9. In January 2001 the Board adjourned its hearing in relation to the claims for GAD and IBS pending further investigation by the Department of Veterans’ Affairs.
10. On 13 February 2002 the Board affirmed the Commission’s decision to refuse disability pension for GAD and IBS on the ground that the conditions were not war-caused.
11. The issue for determination by this Tribunal is whether those two conditions are war-caused. The case was presented by both parties on the basis that the respondent accepts that Mr Potter does presently suffer from GAD and IBS and that if the claim for GAD is accepted as war-caused then the claim for IBS must also succeed.
Statutory Framework
12. Subsection 9(1) of the Veterans’ Entitlement Act 1986 (“the Act”) relevantly provides that a disease contracted by a veteran shall be taken to be war-caused if:
“(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose of, or was attributed to, eligible war service rendered by the veteran;”
13. Section 120 of the Act deals with standards of proof. In the case of a veteran with operational service subsections 120(1) and (3) provide as follows:
“(1) Where a claim under Part II for pension in respect of the incapacity from the 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.
NOTE: This subsection is affected by section 120A.
…
(3) In applying subsection (1) … in respect of the incapacity of a person from injury or disease … 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)…;
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.
NOTE: This subsection is affected by section 120A.
14. Subsection 120A(3) provides, in relation to claims made after 1 June 1994, that an hypothesis connecting a disease with the circumstances of any particular service rendered by the person is reasonable only if there is a Statement of Principles (“SoP”) determined under subsection 196B(2) that upholds the hypothesis. Subsection 120A(4) provides that subsection 120A(3) does not apply where there is no SoP in respect of the relevant injury or disease.
Consideration of the Issues
15. The first question to be answered is whether or not Mr Potter presently suffers from the two conditions in respect of which he has claimed. I have noted at para 11 above that the respondent accepts that he does and I am satisfied that the acceptance is appropriate. In a report dated 19 October 1999 (T7) Dr James Fellows-Smith, a psychiatrist, opined that Mr Potter presented with GAD directly due to his wartime service in Vietnam. He thought the prognosis for a full recovery was unfavourable based on the duration and severity of his condition. In a report dated 13 March 2001 (T24) another psychiatrist, Dr Mander, reported that he had seen Mr Potter on three occasions said that he broadly agreed with Dr Fellow-Smith that Mr Potter had an anxiety disorder although he thought it might more correctly be termed “anxiety disorder – not otherwise specified” rather than GAD.
16. In a report dated 8 May 2001 (T25) a gastroenterologist, Dr Mark Glaser, reported that “in the context of the investigations which [Mr Potter] has had, the symptom complex is entirely in keeping with irritable bowel syndrome. His anxiety disorder undoubtedly aggravates this condition”..
17. On the evidence, and in light of the respondent’s acceptance, I find that Mr Potter does suffer from GAD and IBS. However, for reasons that will be referred to below it would make no difference to the outcome of the case if Mr Potter’s anxiety disorder were to be characterised as “anxiety disorder – not otherwise specified” (“ADNOS”) rather than GAD.
18. The next question to be determined is whether Mr Potter’s GAD and IBS should be accepted as war-caused diseases. I will deal first with GAD.
19. The Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206 set out the approach that is to be adopted by this Tribunal in deciding whether or not a disease is war-caused where a veteran has operational service. The analysis set out below follows the steps specified by the Full Court, the application of which is illustrated by decisions by this Tribunal such as Re Ogden and Repatriation Commission [2002] AATA 512.
20. The first step requires the Tribunal to 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 hypothesis arises, the application must fail.
21. In his report of 19 October 1999, Dr Fellows-Smith did not identify specific incidents occurring during Mr Potter’s service in Vietnam that may have been connected with his GAD. However, in a subsequent report dated 17 January 2000 (T18) Dr Fellows-Smith referred to three incidents that Mr Potter experienced in Vietnam. The first incident involved a clash between Australian soldiers (who were playing sport at a Vietnamese Police Academy) and Vietnamese Police Cadets – who apparently fired at the soldiers, causing Mr Potter to be terrified and frightened for his life. The second involved an incident of having a loaded gun pointed at his head by another Australian soldier who had entered Mr Potter’s tent (where he was asleep) late at night. This had provoked a panic attack by Mr Potter. The third event involved another Australian soldier, a Mr Glenn James, accidentally discharging his firearm behind Mr Potter with the bullet passing close over Mr Potter’s head. In his report of 13 March 2001 Dr Mander related the same three incidents and also referred to a fourth incident involving Mr Potter witnessing an American putting a gun to a Vietnamese taxi driver’s head in a dispute over a small amount of money.
22. Other material before the Tribunal included the following:
(a)A copy of the service record of Mr Glenn James (A10). This record contains an entry that on 6 April 1970, when Mr Potter was still in Vietnam, Mr James was convicted and fined of discharging his firearm.
(b)A statutory declaration from Mr James (A6) in which Mr James said that he had become acquainted with Mr Potter in Vietnam and which contains a description of an incident at the Police Academy (which Mr James thought was in about October 1969) in which the Australian soldiers were fired on by a machine gun and rifles. Mr James described this incident as a very traumatic one in which he thought they were going to die.
(c)Exhibit R2 was a report provided to the Department of Veterans’ Affairs by Writeway Research Service concerning the three incidents described in Dr Fellows-Smith’s report. In relation to the Police Academy incident the researcher could find no official record but did find anecdotal evidence of an incident involving police trainees and soldiers from the unit to which Mr Potter was attached – although the incident was reported to have occurred in March 1969, the month before Mr Potter arrived in Vietnam. It was the researcher’s opinion that had such an incident occurred there would have been an official record of it. In relation to the first incident the research could find no specific reference to such an event occurring.In relation to the discharge of a firearm by Mr James the researcher could find no specific record of such an incident but noted that such an event would be recorded in Mr James’ record of service.
23. Mr Potter gave evidence to the Board about the three incidents referred to above, how he had been frightened and disturbed by them, and how he had not been able to forget them. Mr Ponnuthurai informed me at the hearing that the respondent did not dispute that the three events occurred in essentially the way described by Mr Potter and the other witnesses. Accordingly, Mr Potter did not give evidence about those events in his evidence-in-chief, nor was he cross-examined about them.
24. In all the circumstances and on all the material before me, I am satisfied that the material points to a hypothesis connecting the disease of GAD with stressful events experienced by Mr Potter during operational service. At this stage it is not appropriate for me to consider any inconsistencies in the evidence.
25. Having concluded that the material before me does raise a hypothesis connecting the disease of GAD with the circumstances of the service rendered by Mr Potter, I must then ascertain whether there is in force an SoP determined under subsection 196B of the Act. There are in fact two SoPs in respect of GAD. Instrument No. 48 of 1994 as amended by Instrument No. 275 of 1995 was in operation when the delegate of the Commission determined Mr Potter’s claim on 10 January 2000. The 1994 SoP was revoked and replaced by Instrument No. 1 of 2000 (“the 2000 SoP”) with effect from 28 January 2000. Where there are two possibly relevant SoPs, it is established that the Tribunal should approach the question of entitlement by reference to the SoP in force at the time of its decision. However, if the application of that SoP leads to a conclusion that the disease was not caused by war service then the claimant has an accrued right to have his position judged by reference to the SoP in force at the date of the Commission’s decision: Repatriation Commission v Gorton [2001] FCA 1194, 110 FCR 321 per Allsop J at [62]. It follows that Mr Potter’s claim regarding GAD must first be considered in terms of the 2000 SoP, and that is the basis upon which both parties framed their arguments.
26. The third step to be taken, following the approach set out in Deledio, is that the Tribunal must form an opinion whether the hypothesis raised is a reasonable one and this will be so if the hypothesis “fits” the “template” to be found in the SoP. The hypothesis must contain one of more of the factors which the Repatriation Medical Authority (“RMA”) has determined to be the minimum which must exist, and be related to Mr Potter’s service. If the hypothesis does contain these factors, it can neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.
27. The 2000 SoP deals with conditions known as “Anxiety Disorder”, which is defined as “the anxiety spectrum disorders of generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified …”.. Clause 5 of the 2000 SoP sets out the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder with the circumstances of a person’s relevant service. The specified factors include the following factor, which was acknowledged by the parties as being the only one relevant in these proceedings, namely “experiencing a severe psychosocial stressor within the 2 years immediately before the clinical onset of anxiety disorder.”
28. In clause 8 of the 2000 SoP a “severe psychosocial stressor” is defined to mean “an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.”
29. Mr Potter’s evidence to the Board and his description of events to Dr Fellows-Smith and Dr Mander, and not contested in the present proceedings, was that the events that occurred in Vietnam were very stressful and did evoke feelings of anxiety or stress, indeed panic, in him. I find that Mr Potter did experience at least three severe psychological stressors whilst in Vietnam.
30. The next issue to be considered, and the one that was acknowledged by the parties as being the principal point of contention in these proceedings, is the date of clinical onset of the GAD experienced by Mr Potter. Although the dates of the incident involving the Police Cadets and the incident in Mr Potter’s tent cannot be identified precisely, it is clear that the third of the events, namely the discharge by Mr James of his rifle, can be narrowed down to early April 1970, immediately prior to Mr Potter’s departure from Vietnam.
31. Document T3 folios 19 and 20 are a record of Mr Potter’s discharge medical examination which was conducted on 15 June 1970. Those records contain no indication of any nervous problem or stress related condition at that time. Document R1 is a record of a medical examination that Mr Potter underwent on 25 June 1970, which was conducted by a Medical Officer of the then Repatriation Department for the purposes of considering Mr Potter’s claim for a disability – see paragraph 5 above. R1 records that Mr Potter told the Medical Officer that he was eating and sleeping well and that he was smoking 10 – 12 cigarettes per day and drinking 10 – 12 beers per day.
32. Document T17 folio 63 is a statutory declaration made in February 2000 by Mr Potter’s father. That declaration was to the effect that prior to Mr Potter being called up for army service he was an easy going and easy to get on with person. However, on his return from Vietnam his father notice a marked change in his personality. He was withdrawn, had lost his sporting interest, was hard to get on with, short-tempered and would not discuss anything about his Army service. His father considered this change was due to his experiences in Vietnam.
33. Document T17 folio 64 is a statutory declaration made in March 2000 by Mr Potter’s wife, the contents of which were expanded on in Mrs Potter’s oral evidence. Mrs Potter had known her husband since 1956 and they had been going out together for some years prior to his Army service. He had an easy going and pleasant nature and certainly no violent temperament. On his return from Vietnam he had changed noticeably. He was very quiet and did not want to talk. He was quick to anger and was very argumentative. Despite this they had married in 1971 and right from the start of their married life there had been a great deal of tension in the marriage. As far as she could tell, there was much more tension in their marriage than in other families. Her husband would loose his temper very quickly and frequently, he did not sleep well, often getting up frequently during the night. Overall he did not sleep a lot. He drank too much, in her opinion. At the time of their marriage in 1971 and for some years thereafter their family general practitioner had been a Dr Samaha. She knew that her husband had been seeing Dr Samaha about his asthma but she did not know that her husband had raised with Dr Samaha the question of his nervous condition and anger at the time. The change in his personality was obvious on his arrival back in Perth from Army service. In the period prior to their marriage there were numerous arguments but she did not appreciate the full extent of his moodiness and anger until they were married and established their household. They had to work very hard at their relationship over the years and as far as she was concerned her husband’s present symptoms were not significantly different from those he displayed immediately after his return from the Army and the early years of their marriage.
34. Mr Potter gave oral evidence that after his return from Vietnam and before his discharge from the Army he had spent a couple of months based at Karrakatta. The Army could find little work for them and they spent a lot of their time drinking at a local hotel. On his discharge he had immediately returned to his old position as a plumber with the Public Works Department. He felt strange and alienated from people that he knew and he felt unable to talk to anybody about his experiences. He was feeling extremely restless and had difficulty sleeping. He was very irritable and did not want to mix socially or go anywhere. He knew that his personality had changed from what it had been prior to his Army service. He described his feelings on his return to Perth as being similar to those that he had felt in Vietnam ie that he felt very uneasy and had trouble sleeping.
35. Mr Potter said that he was seeing Dr Samaha about his asthma in 1970 and 1971 and towards the end of 1970 or in early 1971 he had consulted Dr Samaha about his restlessness, feelings of uneasiness and his difficulties sleeping. Dr Samaha’s advice had only been that he would eventually settle down and he would be alright. Dr Samaha had not prescribed any medicine for his problems. In 1974 Dr Samaha had diagnosed that he had an ulcer due to what Dr Samaha had described as “burning the candle at both ends”.
36. Mr Potter said that his feelings of anxiety and uneasiness and shortness of temper had continued over the years. He realised that he had been very hard on his wife and his children over the years. In recent years his ability to control his temper had deteriorated and he had kicked in doors, thrown things, and on one occasion he punched in the windscreen of his car in a fit of temper. It was at that stage that he, on the advice of his wife, had sought medical help which had led to the diagnosis of his GAD.
37. In his reports of late 1999 and early 2000 Dr Fellows-Smith attributed Mr Potter’s then condition to his war time service, noting that his family had noticed a marked change in his personality when he returned from the war and that he had become more loud and aggressive. Dr Fellows-Smith did not offer a specific opinion about the date of clinical onset of the GAD.
38. In his report of 13 March 2001, after noting that he agreed that Mr Potter had an anxiety disorder, Dr Mander said the following (T24 folio 82):
“The question then becomes one of date of onset and as is the case with many individuals this is difficult to be precise about. The statutory declarations suggests that he had problems immediately upon returning from Vietnam. They document irritability, moodiness, loss of interest, withdrawal and an unwillingness to discuss his Army service. These observations have to be set alongside Army medicals at the time of his discharge which found no evidence of a psychiatric disorder. At the time of his service discharge he was drinking heavily but he tells me that he has not done so for 20 years, hence ruling out substance misuse as an ongoing factor. Undoubtedly his symptoms have been very significant in the past 2 years, leading to a substantial breakdown in his marital relationship (given that his wife would not attend the interviews with him) and major incidents such as him smashing the windscreen of his car. If this level of symptomatology had been present at the time of his Navy discharge it is difficult to believe that it would not have been apparent. In addition, it is also difficult to believe that he would have worked more or less successfully for one employer over so many years or indeed that his marriage would still be intact. For this reason I think it is improbable that his anxiety disorder was present within 2 years of the relevant stressor. In discussing the stressor with him, the most pertinent appeared to be the threat that occurred from the Police cadets when, at that time, he thought he was going to die.”
39. It appears that it was on the basis of that report that the Board concluded that Mr Potter’s condition was not war-caused.
40. In his oral evidence Dr Mander was asked whether the additional information that Mr Potter had consulted his general practitioner about symptoms such as not sleeping well, feeling withdrawn and irritable as early as 1970 or 1971 would make a difference to his opinion regarding the date of onset. His response was:
“Yes, it would make a big difference as far as I am concerned for a couple of reasons. One is that men in general are extremely reticent about consulting any helping professional for anything emotional. And if men are bad then veterans are even worse. It tends to be one of the last things that they will do, so where – where a veteran says to me something along those lines, then yes, I would take that very seriously because it would suggest to me that they had a level of symptomatology that they, ‘a’, recognised, and ‘b’, they were seeking to do something about.”
41. The fact that the general practitioner did not make a diagnosis of anxiety disorder or prescribe medication did not surprise Dr Mander. He said that the general practitioner may have taken the view that the symptoms were mild and that a “do nothing” approach was the appropriate thing to do. However it was possible for a general practitioner in the early 1970s to miss the diagnosis. The definition of anxiety states and the understanding of them has become much more clearly defined since about the early 1980s.
42. Finally, Dr Mander said that when he had first seen Mr Potter in March 2001 he felt that it was more probable than not that his anxiety disorder came on after the first two years after his war service. However, with the additional information that he had received at the hearing he could not now be as certain about that. He now considered that it was possible that Mr Potter did suffer from the condition within the first two years. It was clear that he had some symptoms that he didn’t have prior to his Army service.
43. In my opinion the evidence of Mr and Mrs Potter and Dr Mander given at the hearing and of Mr Potter’s father do raise or point to the clinical onset of GAD being not more than 2 years after the completion of Mr Potter’s service in Vietnam ie by no later than April 1972. It follows therefore that the hypothesis raised is a reasonable one.
44. Having reached the conclusion set out in the previous paragraph I must then proceed to consider under section 120(1) whether I am satisfied beyond reasonable doubt that Mr Potter’s incapacity due to GAD does not arise from a war-caused disease. If I am not so satisfied beyond reasonable doubt then his claim must succeed.
45. Both the Board and Mr Ponnuthurai identified the fact that in the medical examination conducted in 1970 for the purposes of Mr Potter’s then disability claim he had said that he was sleeping and eating well – and that this was quite inconsistent with an assertion that he was at the time suffering from nervous or stress related conditions. On this point Mr Potter gave evidence that at his discharge medical examination his only concern was to give answers that would facilitate his discharge from the Army. He had not enjoyed his time in the Army and he wanted to be discharged as soon as possible. In relation to the compensation claim examination a few days later, Mr Potter said that the doctor who had conducted the examination had made him feel extremely uncomfortable because he had been required to take all of his clothes off and stand naked for some time. The doctor had then proceeded to deliver what Mr Potter described as a “lecture about pre-marital sex”.. Mr Potter said that because he felt so uncomfortable and uneasy about the examination he had given answers that would “get him out of there as quickly as possible”.. He had said that he was eating and sleeping well even though he knew at the time those answers were not entirely correct. In relation to that evidence, Mr Ponnuthurai informed me that he accepted Mr Potter’s explanation and that he specifically did not wish to challenge it in any way.
46. The result is that none of the essential evidence in the proceedings, given by Mr or Mrs Potter or any of the documentary evidence, has been challenged in any material way. It is clear that the three incidents described by Mr Potter as being extremely stressful and which provoked feelings of panic in him were accepted by the respondent as having occurred. Likewise, Mr Potter’s evidence that he consulted his general practitioner about his feelings of anxiety and stress sometime in the period between his discharge from the Army in June 1970 and his marriage in the middle of 1971 was not challenged by the respondent.
47. I accept Mr and Mrs Potter’s evidence. In my opinion they were both truthful witnesses and both described a history of Mr Potter’s personality changing upon his return from Vietnam and a history of anxiety and irritability leading to anger and more recently episodes of violent outbursts.
48. On the whole of the evidence I am not satisfied beyond reasonable doubt that Mr Potter, in the periods up to April 1970, did not experience identifiable occurrences that evoked feelings of substantial distress. I am satisfied that Mr Potter was experiencing symptoms of GAD to such an extent by the second half of 1970 and into early 1971 that he consulted his general practitioner about them. I am satisfied that this was not more than two years after the stressful events that Mr Potter experienced, the last of which can be reliably established as having occurred in early April 1970.
49. Overall, I am not satisfied beyond reasonable doubt that Mr Potter’s GAD is not a war-caused disease.
50. In relation to Mr Potter’s claim in respect of IBS, the hypothesis relied on is that the IBS (which it is accepted Mr Potter suffers from) is aggravated by his anxiety disorder. That is the opinion expressed by Dr Glaser in his report of 8 May 2001.
51. The next question is therefore whether there is a relevant SoP. Instrument No. 103 of 1996 (“the 1996 SoP”) is a determination of Statements of Principle concerning IBS and hence I must proceed to step 3 in the Deledio process. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting IBS with the circumstances of a person’s relevant service are set out in clause 5 of the 1996 SoP. The factor that has been identified by the parties as relevant to Mr Potter in the present case is “suffering a specified psychiatric condition within the 6 months immediately before the clinical onset of irritable bowel syndrome.”
52. Clause 7 of the 1996 SoP defines “a specified psychiatric condition” to mean:
“(a) a psychiatric condition with features of anxiety, including:
(i)generalise anxiety disorder, ICD code 300.02; or
(ii)panic disorder, ICD code 300.01; or
(iii)adjustment disorder with features of anxiety, ICD code 309.24, 309.28, 309.3, 309.4, or 309.9; or
(iv)post traumatic stress disorder, ICD code 309.81”
53. It was noted above that there was a possible difference of opinion between Dr Fellows-Smith and Dr Mander as to whether Mr Potter’s condition was GAD or ADNOS. In the consideration set out above concerning Mr Potter’s anxiety disorder it was not significant which of the two was applicable because the 2000 SoP defined anxiety disorder as including both conditions and the factors specified in clause 5 of the 2000 SoP applied to both conditions.
54. If Mr Potter suffers from GAD then his condition is specifically included within the definition of a specified psychiatric condition in the 1996 SoP. The definition contained in clause 7(a) of the 1996 SoP is obviously not meant to extend only to the four disorders referred to in clauses 7(a)(i) to (iv). The use of the word “including” in the definition indicates that it is not an exhaustive list and that the four disorders referred to are not the only conditions covered by the description “a psychiatric condition with features of anxiety”.. In my opinion the condition ADNOS meets that description and hence the condition ADNOS will also be a specified psychiatric condition for the purposes of the 1996 SoP.
55. As Mr Potter has been suffering from IBS for some years and has suffered from his anxiety disorder since 1970 or 1971 then he must have been suffering from a specified psychiatric condition within six months immediately before the clinical onset of IBS. Accordingly, the minimum factor that must exist to raise a reasonable hypothesis which fits the template of the SoP does exist.
56. I must then consider whether I am satisfied beyond reasonable doubt that Mr Potter’s incapacity due to IBS does not arise from a war-caused disease. If I am not so satisfied beyond reasonable doubt then the claim must succeed.
57. It is clear that Mr Potter does suffer from IBS and the respondent accepts that it is connected to and aggravated by his anxiety disorder. As the anxiety disorder is considered to be war-caused, and as there is no evidence before me to indicate that there is any explanation for the IBS other than the anxiety disorder, I am not satisfied beyond reasonable doubt that the IBS is not war-caused.
58. Having concluded that I am not satisfied beyond reasonable doubt that Mr Potter’s anxiety disorder and IBS are not war-caused, my decision is that the decision under review, to refuse Mr Potter an entitlement to a disability pension for generalised anxiety disorder and irritable bowel syndrome, is set aside and in substitution therefor I decide that Mr Potter is entitled to disability pension for generalised anxiety disorder and irritable bowel syndrome with effect from 11 July 1999, that being the date agreed by the parties as applicable.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen, Member
Signed: ...............(sgd V Wong)...............................
AssociateDate/s of Hearing 11 July 2003
Date of Decision 15 August 2003
Counsel for the Applicant Mr P Lofdahl
Counsel for the Respondent Mr C Ponnuthurai
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