Re Clarke and Repatriation Commission
[2000] AATA 545
•4 July 2000
DECISION AND REASONS FOR DECISION [2000] AATA 545
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V98/1149
VETERANS' APPEALS DIVISION )
Re James CLARKE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member Mr A Argent, Member Dr C Re, Member
Date4 July 2000
PlaceMelbourne
Decision 1. The Tribunal varies the decision of the Repatriation Commission made 11 July 1997 and affirmed by the Veterans' Review Board on 19 August 1998 to provide, by consent, that the diagnosis of the claimed condition "post traumatic stress disorder" be changed to "anxiety disorder not otherwise specified" and that anxiety disorder not otherwise specified be accepted as a war-caused disease with effect from 9 June 1996. 2. The Tribunal varies the decision of the Repatriation Commission made 14 July 1997 and affirmed by the Veterans' Review Board on 19 August 1998 to provide that neither irritable bowel syndrome nor megacolon is a war-caused disease. 3. The Tribunal varies the decision of the Veterans Review Board as to assessment made 19 August 1998, to provide that Mr Clarke is entitled to payment of pension at 60% of the general rate with effect from 9 June 1996. 4. The Tribunal reserves liberty to the parties to apply.
(Sgnd) Joan Dwyer
Senior Member
VETERANS' AFFAIRS - whether veteran suffers from post traumatic stress disorder and irritable bowel syndrome or megacolon - whether suffering from alternative war-related condition of anxiety disorder not otherwise specified - applicability of SoP when no SoP in force at the time claim made and comes into force later - whether reasonable hypothesis connecting megacolon with circumstances of the particular services rendered - assessment of pension in respect of accepted war-caused conditions
Keeley v Repatriation Commission (1999) 56 ALD 455
Repatriation Commission v Keeley [2000] FCA 532
Ogston v Repatriation Commission (1999) 29 AAR 89
Repatriation Commission v Cooke (1998) 52 ALD 1
Re Repatriation Commission and Bey (1997) 47 ALD 481
REASONS FOR DECISION
4 July 2000 Mrs Joan Dwyer, Senior Member Mr A Argent, Member Dr C Re, Member
This is an application for review of two decisions of the Repatriation Commission made 11 July 1997 and 14 July 1997 which in part rejected claims for post traumatic stress disorder ("PTSD") (11 July 1997 T12) and for irritable bowel syndrome (14 July 1997 T13) to be accepted as war-caused diseases under s 9 of the Veterans' Entitlements Act 1986 ("the Act"). Each of those decisions also accepted certain conditions as war-caused. The decision of 11 July 1997 (T12) also granted Mr Clarke pension under s 22 of the Act, at 30% of the general rate with effect from 9 June 1996. The decision of 14 July 1997 (T13) accepted claims for psychoactive substance abuse or dependence and impotence and increased the rate of pension to 40% of the general rate from 15 January 1997. The rejections of the claims to have post traumatic stress disorder ("PTSD") and irritable bowel syndrome accepted as war-caused were affirmed by the Veterans' Review Board ("VRB") on 19 August 1998 (T2). The VRB also substituted its own decision as to assessment for that of the Repatriation Commission ("Commission"). It decided that Mr Clarke was entitled to pension at 50% of the General Rate with effect from 14 January 1997. That decision of the VRB as to assessment is also the subject of this review.
At the hearing Mr G Moore of Counsel appeared for Mr Clarke. Ms J McCulloch, an advocate with the Department of Veterans' Affairs, appeared for the Repatriation Commission. Mr Clarke gave evidence. Evidence on behalf of Mr Clarke was also given by Dr Hucker, a psychiatrist and by Mr Marshall, a gastro-intestinal surgeon. Professor Grey, a military historian, Dr Ingpen, a physician, and Dr Gidley a psychiatrist, gave evidence on behalf of the Repatriation Commission. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing.
Mr Clarke was born on 13 August 1944, at Mooroopna near Shepparton, Victoria. He left school at age 16 and after employment in two motor spare parts agencies, he enlisted in the Australian Regular Army ("ARA") on 29 June 1964. Following recruit training at Kapooka, NSW, he was allocated to the Ordnance Corps and his records show he qualified as a storeman technical on 15 March 1965. He was posted to the 1st Australian Logistic Support Company ("1 ALSC") on 12 May 1965 and served in this unit in South Vietnam from 2 June 1965 to 11 June 1966.
The evidence is that the ALSC was based on the perimeter of Bien Hoa airfield to support 1st Battalion the Royal Australian Regiment ("1 RAR"). 1 RAR was attached to the US Army 173 Airborne Brigade at Bien Hoa. 1 ALSC was a composite unit with elements of Australian Engineers, Service Corps, maintenance and ordnance personnel.
Mr Clarke stated that after deplaning at Saigon his group was taken by bus to Bien Hoa about 20 miles (32 km) to the north east. Because the windows of the bus were covered with steel mesh, and there was only one exit door, he felt quite apprehensive. It would be difficult to escape if they were attacked, he said.
Mr Clarke said his main duties at Bien Hoa were to drive his officer commanding. The drives to Saigon and return were single vehicle, not in convoy and they carried no "shotgun" (i.e. an armed soldier). He was anxious during these journeys because he feared attacks. In answer to a question from the Tribunal he said he never encountered any enemy activities during these journeys and he did not know if any Australian vehicles had been attacked during his 12 months in Vietnam.
Mr Clarke also stated he was anxious when on one occasion he had to drive a vehicle at night in Saigon. Other instances which caused him anxiety were first, seeing helicopters land on a helipad near his area and body bags taken from them and secondly, his proximity to an ammunition dump and enemy mortar attacks. He said he was about 200 metres from the ammunition dump and there were two enemy mortar attacks during his time at Bien Hoa. One explosion was about one kilometre away, the other was closer.
In addition, when Mr Clarke went beyond the perimeter on the garbage run he became anxious and apprehensive because of the possibility of his vehicle being attacked.
Mr Clarke said the men with whom he served in Vietnam were a tight-knit group, "a good, small unit." He was never in a fire-fight and he never saw any Australians killed or wounded and he himself suffered no accident or physical injury.
On his return to Australia Mr Clarke believed the general public and, he said, the RSL were hostile to the Australian involvement in Vietnam. The remainder of his Army service was in Australia. This included about a year in the Albury/Wodonga area, two and a half years in the Tropic Trial Unit in North Queensland, a posting to the Army Apprentices School, Balcombe Victoria and finally an Ordnance Corps posting. On his discharge on 28 June 1976 he was a sergeant, acting company quartermaster sergeant.
After his discharge Mr Clarke worked as a laboratory assistant 1976-1977, then with an earth moving company for about six years and finally he was a process worker with Pilkington Glass for 11 years. He took a retrenchment package in August 1996 and although he has looked for work since then, he has been unsuccessful.
Dr Hucker had provided a report and gave evidence. He said that in his opinion Mr Clarke was not suffering from PTSD. He said that Mr Clarke was suffering from an anxiety disorder and in his opinion a good case could be made for an alternative war related condition i.e. DSM IV Item 300 - "Anxiety Disorder not otherwise specified". Dr Hucker said that Mr Clarke also had accepted long standing alcohol dependency. He said that it was difficult to differentiate some of his anxiety depressive symptoms from the symptoms of the alcohol abuse. Dr Hucker said that from the history he obtained, it seemed that most of Mr Clarke's depressive symptoms were related to life events other than those connected with army service, but that, on his account, he had not had symptoms of anxiety, tension and depressive moods before service. He said that gave a reasonable case to say those problems were related to service, given that there was heavy alcohol usage since service as well.
The Tribunal was referred to Instrument 1 of 2000 being the Statement of Principles ("SoP") for Anxiety Disorder. It states in paragraph 2:
2. (a) This Statement of Principles is about anxiety disorder and death from anxiety disorder.
(b) For the purposes of this Statement of Principles, "anxiety disorder" 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, attracting ICD-10-AM code F06.4, F41.1, F41.8 or F41.9. This definition excludes the other anxiety spectrum disorders: post traumatic stress disorder, acute stress disorder, phobia, obsessive-compulsive disorder, adjustment disorder with anxiety, panic disorder and agoraphobia.
Thus the current SoP specifically refers to "anxiety disorder not otherwise specified". As pointed out by Dr Hucker that condition has the code 300.00 in DSM IV. The diagnostic description in DSM IV reads as follows:
300.00 Anxiety Disorder Not Otherwise Specified
This category includes disorders with prominent anxiety or phobic avoidance that do not meet criteria for any specific Anxiety Disorder, Adjustment Disorder With Anxiety, or Adjustment Disorder With Mixed Anxiety and Depressed Mood. Examples include
1.Mixed anxiety-depressive disorder: clinically significant symptoms of anxiety and depression, but the criteria are not met for either a specific Mood Disorder or a specific Anxiety Disorder (see p. 723 for suggested research criteria)
2.Clinically significant social phobic symptoms that are related to the social impact of having a general medical condition or mental disorder (e.g., Parkinson's disease, dermatological conditions, Stuttering, Anorexia Nervosa, Body Dysmorphic Disorder)
3.Situations in which the clinician has concluded that an Anxiety Disorder is present but is unable to determine whether it is primary, due to a general medical condition, or substance induced
Ms McCulloch raised with the Tribunal the question whether the Tribunal should apply the current SoP, No. 1 of 2000, as it specifies the condition diagnosed by Dr Hucker and there was not previously a SoP in existence in respect of anxiety disorder not otherwise specified. The issue raised by Ms McCulloch is related to, but not precisely the same as that considered by Heerey J at first instance and the Full Court of the Federal Court on appeal in Keeley v Repatriation Commission (1999) 56 ALD 455 and Repatriation Commission v Keeley [2000] FCA 532. The precise issue was however addressed in Ogston v Repatriation Commission (1999) 29 AAR 89.
In Ogston the Full Court of the Federal Court held that the intention of the legislature was that s 120A of the Act should apply to all claims lodged after 1 June 1994. It provides, so far as relevant, that in respect of all claims lodged after 1 June 1994 a hypothesis connecting an injury, disease or death with service is reasonable if there is a SoP in relation to that disease, only if the SoP upholds that hypothesis. The Full Court in Ogston decided that even if there was no SoP in force at the time the matter was first determined, if subsequently one did come into force then that SoP was to be applied in any subsequent review. The Full Court rejected submissions as to accrued rights based on provisions of the Acts Interpretation Act 1901. Their Honours held that the unambiguous intention of the legislature was made clear by s 120A of the Act.
In Keeley v Repatriation Commission Heerey J held that where there was a SoP in force when a claim was first determined, and subsequently that SoP was revoked and a new SoP which was less favourable to an applicant came into force, the applicant was entitled to have the original determination reviewed on the basis of the original SoP rather than the more recent one. An appeal against Heerey J's decision was unsuccessful.
It was accepted before Heerey J that Ogston applied in the different circumstance where there was previously no relevant SoP but one was subsequently made. Heerey J said at para 34, p462:
34 Counsel argued that if an SoP is to be applied, even though none existed at the time of the claim, why should not a new SoP apply when an old one existed at the time of claim? Counsel said further that the whole purpose of the RMA and the SoP system was to present the current "sound medical-scientific evidence" of connection between a particular injury or death and relevant operational service. It is not to be imputed to Parliament, he said, an intention that more current medical scientific views expressed in the most recent SoP would not prevail. Further, it is not to be assumed that subsequent SoPs will be less favourable to claimants.
Heerey J in paragraph 42 distinguished Ogston. Kiefel J in the Full Court in Keeley at paragraph 60 also referred to Ogston as the authority on the issue of a first SoP applying retrospectively.
The circumstances of this matter are, so far as relevant to this issue, identical to those in Ogston. Thus Instrument 1 of 2000 is applicable. Had we had to decide whether anxiety disorder not otherwise specified was a war-caused disease, that issue would have been governed by Instrument 1 of 2000.
However after Dr Gidley gave evidence the respondent conceded that anxiety disorder not otherwise specified is a war-caused disease. Dr Gidley agreed with Dr Hucker that at a descriptive level Mr Clarke had similar symptoms to those described in anxiety disorder not otherwise specified. He explained that the reason why he did not make that diagnosis was because of his perception that the most likely cause was the stresses of life faced by Mr Clarke over quite a long period of time, subsequent to his service in Vietnam. Dr Gidley did say that on the history he obtained of Mr Clarke's service in Vietnam, the experiences in Vietnam would fall within the definition of a psycho social stressor in the relevant SoP. But, he said he thought the fact that there was a considerable gap in time between the onset of those symptoms and the attendant dysfunction, and the termination of Mr Clarke's Vietnam service, lessened the likelihood of there being a hypothesis of a connection between that service and the subsequent symptomatology.
The Tribunal accepts that the concession was appropriate in the light of the evidence. The Tribunal made it clear that on the evidence of Dr Hucker and Dr Gidley it would not find that Mr Clarke was suffering from PTSD. A Tribunal must be satisfied on the balance of probabilities that a person is suffering a disease Repatriation Commission v Cooke (1998) 52 ALD 1. In this matter neither of the psychiatrists who gave evidence supported the diagnosis. Their evidence seemed to us more persuasive than the reports of Professor Morris (T6), Dr Parkin (T17) and Dr Sime (A1).
Thus there are two issues remaining. The first is whether the condition of irritable bowel syndrome, or any other similar condition is war-caused. The second is the assessment of the rate of pension payable.
irritable bowel syndromeMr Clarke claimed that he suffered from irritable bowel syndrome. His treating doctor, Dr Moffit (T9 p58) and Dr D'Souza, a departmental medical officer (T7 p47), indicated that Mr Clarke did suffer from irritable bowel syndrome. Dr D'Souza also noted that Mr Clarke had told him that a colonoscopy three months ago had revealed that he had a long colon. Mr Marshall who is a gastro-intestinal surgeon was called on behalf of the applicant. It was his opinion that Mr Clarke's condition should be diagnosed as megacolon (trans. p63) rather than as irritable bowel syndrome.
In his report of 20 April 1999 (A5), Mr Marshall wrote:
In my view this whole matter is based on a misconception. "Irritable bowel syndrome" is a syndrome not a disease, and the syndrome merely consists of lower abdominal colic, constipation and/or diarrhoea at intervals, and abdominal bloating. It is not a "disease", and to regard it as a specific disease with a specific psychiatric cause is absurd. In the case of Mr Clarke he is undoubtedly suffering from colonic distension and this to my mind is partly the result of his gaining weight but more particularly it seems clear that his bouts of colic during his service in Vietnam are prima-facie evidence that he was suffering from a colonic malfunction at that stage. I hasten to say that this is not the result of psychiatric disorder, and it is absurd to insist that this imaginary "disease" or irritable bowel syndrome must be caused by a psychiatric disorder. This is simply not true, although of course people with psychiatric disorders do very commonly have colonic problems.
In the case of Mr Clarke I do not believe that his colonic problems were the result of a psychiatric disorder, even if he now is supposed to have a psychiatric disorder. I believe that his colonic problems were the result of a presumed bowel infection during his Vietnam service and that his present situation has been precipitated by his gain in weight. In other words, he is suffering from a minor degree of megacolon, not "irritable bowel syndrome", and I think that it is no more than reasonable that this should be accepted as war-related.The difficulty for Mr Clarke was that, although Mr Marshall expressed the view that it was "no more than reasonable" that the minor degree of megacolon which he suffered "should be accepted as war-related", Mr Marshall did not in his report explain why, in his opinion, the condition was related to service, except to hypothesise that Mr Clarke had a "presumed bowel infection during his Vietnam service."
Megacolon is a condition in respect of which no SoP has been determined. Therefore, if a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by Mr Clarke, were raised by the material before the Tribunal, we would, notwithstanding s 120A of the Act, find that the disease was war-caused.
We have concluded that Mr Marshall's evidence did not raise a reasonable hypothesis.
The Tribunal had before it, as part of exhibit R1, a report from Dr Elliott addressed to Dr Moffit dated 17 November 1997. It is a report on the result of a colonoscopy. It confirms Mr Marshall's diagnosis of megacolon. Dr Elliott reported:
A colonoscopy was attempted at Jolimont Endoscopy on 7th February. The instrument was passed to the hepatic flexure, but further progress could not be made due to marked looping because of a long and tortuous left colon. No abnormality was detected. Immediately after the colonoscopy a barium enema was performed, and this confirmed quite marked redundancy of the sigmoid and transverse colon, but no mucosal abnormality was demonstrated.
Rob, this man has a long and tortuous large bowel, which I am sure is the cause for his symptoms of variable bowel habit and bloating. I have stressed to him the importance of a high natural fibre diet, and the intermittent use of a fibre supplement, such as Metamucil.When Mr Marshall was asked what he considered to be the cause of the constipation which Mr Clarke reported suffering in Vietnam, he said that it would have been due to a diet which was grossly restricted in fibre intake. Mr Marshall acknowledged that Mr Clarke said that the constipation improved after service in Vietnam when his diet improved, but recurred more recently after his marriage eight years ago. It was only then that the diagnosis of irritable bowel syndrome was made. Mr Marshall in his report gave the following history:
He has been married for eight years and before his marriage drank "a lot of beer". He has put on a lot of weight since his marriage (20 kg or so) and said that he had no problems with constipation before his marriage. He now weighs 110kg and should be no more than 80 at the most.
Mr Clarke was constipated during his Vietnam service and regards this as being the result of the diet available to troops at the time. He complained of intermittent lower abdominal colic which was relieved by a bowel action. His symptoms subsided somewhat after the war. He has had intermittent colic since then but only became constipated over the last few years.
Mr Marshall said that the physical fact of Mr Clarke's elongated bowel in itself is a perfectly adequate explanation for the group of symptoms which had been inaccurately or incompletely labelled as irritable bowel syndrome. He said that the discreet physical condition could be caused by the lack of dietary fibre, and the consequences of that whilst in Vietnam could produce the current symptoms.
In cross-examination Mr Marshall agreed that a megacolon is a natural variant in the population. He said that Mr Clarke may have simply been born with a bowel more elongated than usual, or he may have acquired it as a consequence of his dietary habits. Mr Marshall believed that Mr Clarke had been "a couple of years at least" in Vietnam. When Mr Marshall was told that Mr Clarke was only there for one year, he said that would be quite enough to trigger it or that it could be that Mr Clarke's condition is just a normal variant (trans. p67).
Mr Marshall agreed with Ms McCulloch that he had not obtained any description of the diet Mr Clarke ate in Vietnam. He said he had seen many other people who had described to him eating bully beef and the like with no fibre in it at all. He said he thought it was common place that the diet of sailors and soldiers during the war had no fibre in it.
Mr Marshall also said it was possible that if Mr Clarke did not suffer constipation after service for 24 years, and had only developed the problem again after his marriage, at which stage he had also gained a lot of weight, the problem could be due to extra fat in the mesenterys of the bowel which does often cause it to elongate (trans. p68). Mr Marshall suggested that perhaps Mr Clarke had had a degree of megacolon before he went to Vietnam, and that there was an aggravation of it during his war service, despite the fact that subsequently there was no constipation for 24 years.
We do not find that Mr Marshall's evidence raised a reasonable hypothesis connecting the condition of megacolon, or constipation from megacolon, with the circumstances of the particular service rendered by Mr Clarke. Mr Marshall raised a number of possibilities, some of which were related to service, but he had obtained no information from Mr Clarke as to the Army diet he was given in Vietnam. Nor did Mr Marshall have a history of any bowel infection during service. The Full Court of the Federal Court said in Repatriation Commission v Bey (1997) 47 ALD 481 that for material to raise a reasonable hypothesis something more is needed than that it merely raise a possibility. The Full Court stated that for a hypothesis to be "reasonable" pursuant to s 120(3) of the Act, it must be pointed to or supported and not merely left open as a possibility, by the material. We consider that the evidence does not point to or support either the hypothesis of a poor diet during service nor that of a presumed bowel infection in Vietnam.
Further, Mr Marshall's evidence did not explain how either of those presumed possibilities would lead to the development of megacolon which, as he said, can be just a normal variant. Finally Mr Marshall's evidence did not raise a reasonable hypothesis connecting bowel problems such as constipation since marriage in 1990 with service in 1966, in the light of the history that there was no problem with constipation post Vietnam i.e. since 1966, until Mr Clarke put on weight after his marriage.
We find that the material before the Tribunal does not raise a reasonable hypothesis connecting the disease of irritable bowel syndrome or megacolon with the circumstances of the particular service rendered by Mr Clarke.
assessment of rate of pensionThe final issue is the assessment of the rate of pension payable to Mr Clarke in respect of the accepted conditions of:
1.Bilateral sensorineural hearing loss
2.Lichen simplex chronicus in groin and both ankles
3.Psychoactive substance abuse or dependence
4.Impotence
5.Anxiety disorder not otherwise specified
The VRB in its decision of 19 August 1998 (T2) increased the rate of pension payable to Mr Clarke to 50% of the general rate from 14 January 1997. In doing so the VRB assessed Mr Clarke as having a combined impairment rating of 30 points on the Guide to the Assessment of Rate of Pension 5th ed. ("GARP"), and a lifestyle rating of 2 being the higher rating in the shaded area. By the time the hearing before the Tribunal commenced, the respondent had obtained two updated combined impairment assessments by Dr Morgan dated 28 June 1999 and 15 December 1999 (R5).
It is necessary for the Tribunal to consider as a preliminary matter the submission of Mr Moore that a separate rating should be given on Chapter IV for emotional and behavioural impairment in respect of the now accepted condition of anxiety disorder not otherwise specified, in addition to that for psychoactive substance abuse or dependence. The Tribunal pointed out to Mr Moore that the introduction to Chapter IV states:
Only one final rating is to be determined using this Chapter for any psychiatric condition or combination of psychiatric conditions.
Mr Moore submitted that notwithstanding that direction, it was appropriate to calculate two separate ratings on Chapter IV, one for psychoactive substance abuse or dependence and one for anxiety disorder not otherwise specified. He submitted that psychoactive substance abuse or dependence should not be characterised as a psychiatric condition, and thus that the passage quoted in the preceding paragraph, from the Introduction to Chapter 4 of GARP did not preclude two ratings using Chapter 4. We reject that submission. It is clear that the intention of GARP is that only one rating per Table is to be adopted. That rating is to take into account all the accepted conditions which create an impairment of the sort covered by that Table or Chapter. That is explained in the How to Use this Guide at GARP p6. It states:
If two or more conditions contribute to the same functional loss, a single rating only is to be given for that functional loss.
Only one final rating is to be determined on Chapter 4 for emotional and behavioural impairment from any war-caused injury or disease. The appropriate final rating on Chapter 4 of GARP must take into account the effects not only of psychoactive substance abuse or dependence, but also any emotional or behavioural impairment of Anxiety Disorder not otherwise specified.
We have given our reasons for that conclusion. In addition we consider it appropriate to note, in respect of Mr Moore's submission that psychoactive substance abuse or dependence is not a psychiatric disease, that one chapter of DSM IV is devoted to "Substance-Related Disorders". That would seem to suggest that psychoactive substance abuse or dependence is a psychiatric condition.
In assessing the level of impairment on Chapter 4, we propose to take into account the anxiety symptoms 1 – 8 set out by Dr Hucker in his report (A2). Those symptoms are briefly summarised as follows:
1.Variable sleep problems with hyperactivity, increased sweating, waking in a frightened state, hitting his wife in his sleep, dreams of war and the enemy.
2.Continual tension and being easily irritated – numerous altercations when intoxicated.
3.Episodes of fluctuating, tense depressive moods – has been suicidal – fear of losing his marriage – ongoing moderate dysphoric mood.
4.Sexual difficulties.
5.Social avoidance, only one close friend who is also a Vietnam veteran, avoidance of RSL contacts, reunions and marches because of negative reactions, anger and disappointment at this, anxiety when he thinks of those who died during service and realises how dangerous the situation really was.
6.Memories of service.
7.Difficulty with relationships
8.Upset when he considers what the Vietnam war was for.
The respondent obtained three reports (R6, R7 and R8) from Dr Byrne, a psychologist who saw Mr Clarke on 25 February 1999. Dr Byrne only rated Mr Clarke's alcohol abuse disorder, as the anxiety disorder was not then accepted. In his report of 3 September 1999 he selected the following ratings on the Tables in Chapter 4 as relevant during the assessment period from 9 September 1996:
Table 4.1 – Subjective Distress Rating 2
4.2 – Manifest Distress Rating 3
4.3 – Functional Effects Rating 2
4.4 – Occupational Rating 0
4.5 – Domestic Situation Rating 1
4.6 – Social Interaction Rating 0
4.7 – Leisure Activities Rating 0
4.8 – Current Therapy Rating 1
Taking into account also the symptoms of anxiety disorder noted by Dr Hucker those ratings will be increased.
We consider that the appropriate ratings on Chapter 4 of GARP are as follows:
Table 4.1 Subjective Distress
The two possibly relevant ratings are three and six. The criteria are as follows:THREERecurring symptoms causing mild distress. The veteran can distract himself or herself from the distress on most occasions.
SIXFrequent symptoms causing moderate distress. The veteran will sometimes be unable to distract himself or herself from the distress.
It is difficult to choose between these two ratings. We note that Dr Morgan (R5) on 28 June 1999 chose six, but on 15 December 1999 reduced that rating to three. Bearing in mind Dr Hucker's reference to Mr Clarke being acutely suicidal and depressed at his fear of losing his marriage and his constant feeling of being tense and easily irritated, we consider that the appropriate rating is six.
Table 4.2 – Manifest distress
Dr Byrne selected a rating of three. This was adopted by Dr Morgan in each of his assessments. It appears to us to be appropriate. The description for that rating is as follows:THREEDistress is sometimes apparent, and/or the veteran's pre-occupation with the symptoms is sometimes noticeable to astute observers or persons familiar with the veteran.
Table 4.3 – Functional effects.
A rating of NIL is appropriate.NILMinimal or no interferences with most aspects of living.
Table 4.4 – Occupation.
There is no evidence of Mr Clarke's anxiety or alcohol disorder having interfered with work or occupation. The rating must be NIL.Table 4.5 – Domestic Situation.
This is a difficult Table on which to choose the appropriate rating. Ratings ONE to SIX require consideration. They are as follows:
ONE Occasional friction with family members.
TWO Frequent discord with family members.
THREE Frequent conflict with family members.
FIVE Continual conflict with family members.
SIX Family functioning is deteriorating, and estrangement or divorce are a likely consequence.
The evidence is that there are sexual difficulties with the marriage. There have also been occasions when Mr Clarke's alcohol abuse has had a severe impact on the marriage. If it is not kept under control at its current level, divorce is a possible but not a likely consequence. The discord or conflict on the evidence is not frequent or continual but it is very serious on the infrequent occasions it occurs. Family functioning is not deteriorating as Mr Clarke's drinking is now under some control.
We note that Dr Hucker wrote under Marital History (A2 p5):
Mr. Clarke married nine years ago and he has a strong relationship with his wife. On the other hand his heavy alcohol abuse and the volatility of the relationship does cause ongoing significant problems and it seems that he lives in the relationship under the threat of it ending if he returns to heavy drinking. They both expressed a degree of frustration with the long standing sexual difficulties.
None of the specified general descriptions seem to fit the evidence. Dr Byrne chose a rating of one, which we consider to be too low. We have chosen a rating of five, not because there is "continual conflict with family members" but because rating six is the closest on the evidence, although the situation is not as bad as the rating suggests.
Table 4.6 Social Interaction.
Dr Hucker's report describes a significant reduction in social interaction. Mr Clarke has only one close friend and avoids people socially. He also avoids Vietnam reminders, while feeling somewhat alienated from people who do not have an Army background. We consider a rating of three is appropriate. It was adopted by Dr Morgan in his assessment of 28 June 1999.4.7 Leisure Activities.
There is no evidence as to the accepted conditions having any effect on leisure activities. We consider a rating of NIL is appropriate.4.8 Current Therapy.
This Table provides the following description:
TWO Psychiatric treatment, at least in the form of medication or psychotherapy, has been tried (or recommended), and/or some occasional supportive therapy given at an outpatient level or by an LMO or specialist and/or a friend or other person (eg a member of the clergy) has acted in a supportive role or as a sounding board.
The evidence is that Mr Clarke has attended outpatient counselling for PTSD. He has been part of a Naltroxene study for alcoholism but has not, in his opinion, benefited from his counselling or the alcoholism study treatment. We consider the rating two to be appropriate.
The ratings we have chosen are as follows:
4.1 - 6
4.2 - 3
4.3 - 0
4.4 - 0
4.5 - 5
4.6 - 3
4.7 - 0
4.8 - 2
GARP, at p90, provides a formula for calculating the final impairment rating for psychiatric conditions on Table 4. We must add the ratings for Tables 4.1 and 4.2 and the highest three ratings on 4.3–4.8. Thus the figures are:
4.1 - 6
4.2 - 3
4.5 - 5
4.6 - 3
4.8 - 2
19
We find that Mr Clarke has a rating of 19 for Emotional and Behavioural Impairment on Chapter 4 of GARP.
The next task is to combine the rating of 19 for psychiatric conditions with the various ratings for other war-caused conditions. They are combined from the highest to the lowest. The parties accept the previously assessed ratings for the other conditions. We accordingly accept those ratings as follows:
tinnitus 6
sensori-neural hearing loss 10
lichen simplex chronicus 5
impotence 0The combined impairment rating is 34. An impairment rating of 34 converts to 60% degree of incapacity using the shaded area on the conversion Table. In writing these reasons for decision we noted that psychoactive substance abuse or dependence was only accepted as war-caused from 15 January 1997. That led us to consider whether it was possible on the evidence to calculate separate impairment ratings on Chapter 4 for anxiety disorder not otherwise specified prior to 15 January 1997, and for anxiety disorder not otherwise specified combined with psychoactive substance abuse or dependence from 15 January 1997. We arranged for the Deputy Registrar to write to the parties asking them the following three questions:
(i)The effective date for the acceptance of anxiety disorder not otherwise specified as a war-caused disease.
(ii)The effective date for the acceptance of psychoactive substance abuse as a war-caused disease.
(iii)If the Tribunal finds that only one rating is appropriate on Chapter 4 for both conditions, is it necessary to attempt to apportion that between the two conditions so that no rating is made in respect of the alcohol abuse in respect of the period between June or September 1996 and January 1997?
Both parties replied to those letters. The answers of the solicitor for the applicant to questions (i) and (ii) were in our opinion incorrect. The answer to question (iii) was non-responsive. The respondent replied as follows:
the date of effect is 9 June 1996.
the date of effect is 15 January 1997.
given the state of medical evidence available it is not feasible to reach any conclusion in respect of apportionment. Accordingly no apportionment can be made between 9 June 1996 and 15 January 1997.
We understand the respondent to be conceding that the appropriate rating for the combined conditions may be used from 9 June 1996 being the date of effect for the acceptance of anxiety disorder not otherwise specified as a war-caused condition. We propose to accept that concession.
The decision of the VRB assessing pension at 50% of the general rate will be varied to provide that Mr Clarke is entitled to pension at 60% of the general rate with effect from 9 June 1996.
The Tribunal will:
1.Vary the decision of the Repatriation Commission made 11 July 1997 and affirmed by the Veterans' Review Board on 19 August 1998 to provide, by consent, that the diagnosis of the claimed condition post traumatic stress disorder be changed to "anxiety disorder not otherwise specified" and that anxiety disorder not otherwise specified be accepted as a war-caused disease with effect from 9 June 1996.
2.Vary the decision of the Repatriation Commission made 14 July 1997 and affirmed by the Veterans' review Board on 19 August 1998 to provide that neither irritable bowel syndrome nor megacolon is a war-caused disease.
3.Vary the decision of the VRB as to assessment made 19 August 1998 to provide that Mr Clarke is entitled to payment of pension at 60% of the general rate with effect from 9 June 1996.
4.Reserve liberty to the parties to apply.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member, Mr A Argent, Member and Dr C Re, Member
Signed: Anne O'Rourke
AssociateDate/s of Hearing 22 May 2000
Date of Decision 4 July 2000
Counsel for the Applicant Mr G Moore
Solicitor for the Applicant De Marchi & Associates
Counsel for the Respondent Nil
Solicitor for the Respondent Nil
Departmental Advocate Ms J McCulloch
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