Roberts and Repatriation Commission
[2006] AATA 631
•17 July 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 631
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/291
VETERANS' APPEALS DIVISION ) Re ALAN ROBERTS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms M J Carstairs, Member Date 17 July 2006
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s anxiety disorder and atrial fibrillation are war caused with effect from 5 October 2003. The Tribunal remits to the respondent the assessment of the rate of pension payable.
..........[Sgd]..............
MEMBER
CATCHWORDS
VETERANS’ AFFAIRS – disability pension –anxiety disorder due to a general medical condition – decision set aside.
Veterans’ Entitlements Act 1986 s9, s196B(2)
Benjamin v Repatriation Commission [2001] FCA 1879
Mines v Repatriation Commission [2004] FCA 1331
Repatriation Commission v Deledio (1998) 83 FCR 82Repatriation Commission v Crane [2004] FCAFC 86
REASONS FOR DECISION
17 July 2006 Ms MJ Carstairs, Member 1. On 5 January 2004 Mr Alan Roberts claimed under the Veterans’ Entitlements Act 1986 for the conditions of anxiety due to a medical condition and for a heart condition. These conditions were identified by his general practitioner as anxiety/stress, and atrial fibrillation. His claims were rejected and Mr Roberts now seeks review with this Tribunal.
2. As a result of further medical reports, and without the need for hearing on this part of the claim, the respondent now concedes that Mr Roberts’ atrial fibrillation is war-caused. In view of the medical evidence supporting that conclusion, including the report of Dr Peter Grant, Senior Medical Officer Compensation, the Tribunal decides that atrial fibrillation is war-caused within the meaning of s9 of the Act.
THE ISSUES
3. The parties agree that Mr Roberts suffers from an anxiety disorder but they disagree with its specific description. The issues that must now be decided are as follows:
(a) what is Mr Roberts’ psychiatric disorder;
(b) is Mr Roberts’ condition of anxiety disorder war-caused?
BACKGROUND
4. Mr Roberts served in the Royal Australian Navy (the Navy) between 1959 and 1968. He saw operational service, which under the legislation is eligible war service, with the Far Eastern Strategic Reserve in a series of short periods, totalling some 153 days, and took part in voyages to waters off Malaya, Singapore, and North Borneo
5. Mr Roberts’ duties in the Navy were in the engineering branch with a sub-rating as a furnace bricklayer and lagger. On his discharge from the Navy he held the rank of Leading Mechanical Engineer. It was not disputed that his naval service involved him working with asbestos – described in one medical report as significant asbestos exposure over a period of nine years. Only part of Mr Roberts’ service was eligible service under the Act.
6. Mr Roberts has a number of medical conditions accepted as due to his war service in addition to the now accepted atrial fibrillation. These conditions include asbestos-related pleural plaques, chronic simple bronchitis, gastro-oesophageal reflux and bilateral hearing loss and tinnitus. In 2002 he was reported as suffering mild asbestosis with no significant lung function impairment (T4, p16).
DIAGNOSIS
7. I was presented with evidence that confirmed that Mr Roberts suffered from anxiety, but the doctors disagreed on which type of anxiety disorder was involved. Dr J Gold concluded that Mr Roberts suffers from generalised anxiety disorder.
8. Dr Gold said in oral evidence that Mr Roberts’ personality makes him more prone to develop symptoms in reaction to his medical problems. She said she thought that generalised anxiety disorder was a better description of his anxiety state than was anxiety disorder due to a general medical condition because the symptoms he experiences were ongoing and general. She said that the Diagnostic and Statistical Manual of Mental Disorders 4th ed (DSM-IV) looks to the ‘best fit’ description in characterising any mental disorder, but she also acknowledged that a person could have more than one psychiatric condition at any one time. Dr Gold said that DSM-IV requires for a diagnosis of anxiety disorder due to a general medical condition that the symptoms are judged to be a direct physiological consequence of a specific medical condition. She thought that Mr Roberts’ anxiety was not the direct physiological consequence of his conditions, but rather that felt he stress about his conditions.
9. Dr Gold acknowledged that Mr Roberts’ symptoms of atrial fibrillation would produce symptoms similar to those of anxiety, including racing heartbeat, but she said that whether this allowed one to conclude that the anxiety was a direct physiological consequence needed to be addressed by an expert in heart disease. I note that the text of DSM-IV sets out that determinations of this kind (about direct physiological consequence) can be based on history, laboratory findings, or physical examination and does not demand opinion from a specialist in the general medical condition itself.
10. Mr Roberts treating psychiatrists, Dr Hewland and Dr Radovic, have both treated Mr Roberts over a longer period of time than Dr Gold who only had one interview with Mr Roberts. Both Dr Hewland and Dr Radovic set out in their reports an analysis of Mr Roberts’ symptoms applying the tests from DSM-IV used to establish a diagnosis of anxiety disorder due to a general medical condition. Their qualifications as psychiatrists were not in question.
11. All three psychiatrists recorded similar histories including that Mr Roberts had not suffered noticeable anxiety until diagnosed in the 1990’s with his lung and other disorders. All noted the absence of family history. In that regard I took into account that DSM-IV notes that late onset and the absence of a personal or familial history of anxiety disorder will favour a diagnosis of anxiety disorder due to a general medical condition over other possible diagnoses.
12. I took into account that on the question of diagnosis the task of the Tribunal is how to characterise the psychiatric problems exhibited by the veteran (Benjamin v Repatriation Commission [2001] FCA 1879) or, as stated in Mines v Repatriation Commission [2004] FCA 1331, how to assess the collection of relevant symptoms amounting to a disease without necessarily attaching a label to that collection. I took into account that all psychiatrists agree that Mr Roberts’ psychiatric condition is an anxiety disorder. However I was also satisfied, preferring the evidence of his treating psychiatrists and taking into account the commentary in DSM-IV, that the particular kind of anxiety that Mr Roberts suffers is that due to a general medical condition.
WAS MR ROBERT’S ANXIETY DISORDER CAUSED BY OPERATIONAL SERVICE
13. In the circumstances of this case, where Mr Roberts has rendered operational service, the issue of whether anxiety was caused by operational service is to be decided by reference to the four step process identified in Repatriation Commission v Deledio (1998) 83 FCR 82.
14. The first step requires me to consider all the material and to determine whether that material points to an hypothesis connecting the disease with the circumstances of the particular service rendered by Mr Roberts. The hypothesis raised was that Mr Roberts suffers from a number of medical conditions that are related to his service - some are cardiovascular and some are respiratory - and that he suffers as a result from anxiety which is directly related to these conditions.
15. In my view the material does point to such a hypothesis. That material includes, as set out below, Mr Roberts’ evidence about his panic attacks and general anxiety as a result of his health issues, and the three psychiatrist reports confirming his anxiety and panic reactions arising from his medical conditions.
16. The next step requires me to ascertain whether there is in force a Statement of Principles under s196B(2). The Statement of Principles for anxiety disorder was gazetted in February 2000 (Instrument No 1 of 2000), repealing and replacing two previous Statement of Principles – one for generalised anxiety disorder and another that dealt specifically with anxiety disorder due to a general medical condition. After the gazettal of the new Statement of Principles in 2000 both conditions were dealt with under the one Statement of Principles. However one factor, namely factor 5(b) dealt specifically with the condition of anxiety disorder due to a general medical condition.
17. The third step from Deledio requires that I form an opinion whether the hypothesis raised is a reasonable one, that is to say, whether the hypothesis fits, or is consistent with, the template to be found in the relevant Statement of Principle.
18. Paragraph 5(b) of the Statement of Principles provides the following, as a minimum factor that must 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:
for anxiety disorder due to a generalised medical condition only, having an endocrine, cardiovascular, respiratory, metabolic or neurological disorder, where the disorder is a direct physiological cause of the anxiety at the time of the clinical onset of the anxiety disorder; or …
19. Relevantly for purposes of the factor in paragraph 5(b), anxiety due to a generalised medical condition is defined in clause 8 of the Statement of Principles as meaning a psychiatric disorder with the following features:
A. Prominent anxiety, panic attacks, obsessions or compulsions predominate in the clinical picture; and
B. there is evidence from the history, physical examination, or laboratory findings that the anxiety, panic attacks, obsessions or compulsions are the direct physiological consequence of a general medical condition; and
C.the anxiety, panic attacks, obsessions or compulsions are not better accounted for by another mental disorder; and
D. the anxiety, panic attacks, obsessions or compulsions do not occur exclusively during the course of a delirium; and
E. the anxiety, panic attacks, obsessions or compulsions cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
20. I turn then to a consideration of the evidence. I have noted that the psychiatrists who diagnosed Mr Roberts with the condition of anxiety due to a general medical condition used these features A-E, which derive from DSM-IV, in reaching their conclusions. That is, their evidence points to the presence of that condition, even had I not been satisfied that Mr Roberts has that condition, on the balance of probabilities.
21. Mr Roberts suffers from cardiac and respiratory disorders, including amongst the accepted conditions, pleural plaques, bronchitis and atrial fibrillation.
22. Mr Roberts gave the following evidence relevant to his cardiac and respiratory disorders. He described how in 1993 he was diagnosed as having mesothelioma, a serious complication of asbestos exposure. At the time the respondent accepted this as war-caused. It subsequently transpired that this diagnosis was made in error, and the decision accepting the condition was revoked. However, it is reasonable to infer that for Mr Roberts this would have been a matter of great concern.
23. Mr Roberts told me that he is concerned for his future as he believes that his pleural plaques will develop inevitably into asbestosis and later to mesothelioma. He said that x-rays now have confirmed that he has mild asbestosis. When he was first diagnosed with pleural plaques his general practitioner phoned him and told him to come in urgently. Mr Roberts said he was shattered with the diagnosis. An appointment was made to return to the specialist, but this took some 3 or 4 weeks. The specialist assured him that he did not have more sinister developments, but Mr Roberts firmly believes his prognosis is poor. He said that the time frames for worsening of the disorder as he understood it were 15 to 20 years and he is conscious that his diagnosis was made 13 years ago. This is a cause of great ongoing anxiety to him.
24. I noted that his general practitioner’s clinical notes of his attendances (T4, p8) recorded in 1993 that x-rays raised the question of mesothelioma and therefore great anxiety; in 1994 he had counselling sessions for anxiety; in 1996 that he had whole consult re asbestos exposure.
25. Mr Roberts said that he is conscious of several deaths involving asbestos- related diseases including that of one colleague who served with him on HMAS Melbourne. He said that he finds it devastating to watch coverage of the issue on television and referred to the panic attacks he experiences about death from this disease.
26. Mr Roberts said that he suffers anxiety about his atrial fibrillation as well. He said that he has recorded heart rates of 200 per minute on 5 occasions and has been hospitalised for this. He believes he has been in life threatening situations because of it.
27. The evidence of two psychiatrists in this matter, as outlined above, was that Mr Roberts’ medical conditions are the direct physiological cause of his anxiety. The evidence taken overall is consistent with Factor 5(b) of the template. Accordingly, in my view, the third Deledio step is satisfied.
IS THE HYPOTHESIS DISPROVED?
28. It then becomes necessary to proceed to the fourth step in Deledio and to decide whether I am satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Roberts’ anxiety disorder was due to his operational service.
29. On this question I make the following findings of fact. I regarded Mr Roberts as a reliable witness and a reliable historian and I accept his evidence as truthfully given. Dr Gold agreed that she believed Mr Roberts was not exaggerating or overstating his symptoms.
30. I have already set out the substance of Mr Roberts’ account of his symptoms. The medical reports accord with his evidence. Dr Hewland stated that Mr Roberts’ severe anxiety symptoms arose directly from his generalised medical conditions of digestive, respiratory, cardio-vascular and hearing problems which arose from his war service. She noted that he was increasingly frustrated and helpless from the symptoms of his physical disorders and worries about early death. She noted his fear of choking while asleep because of his reflux and chronic obstructive pulmonary disease. Not all these conditions are accepted as due to Mr Roberts war-service, and I have taken that matter into account in reaching my conclusions. However it is safe to conclude that Mr Roberts is a person who reacts badly to his declining health.
31. Dr Radovic stated that Mr Roberts had anxiety and panic attacks with some obsessive compulsive features and that his symptoms arose directly from his generalised medical conditions that were respiratory, digestive and hearing-related and arose from war service. He stated that the recent diagnosis of atrial fibrillation only worsened Mr Roberts’ anxiety symptoms.
32. The respondent’s submissions imply rather than state that it was not objectively reasonable that Mr Roberts should react to his accepted disabilities in the manner that he states, and/or that his reactions in truth are to medical conditions that are not accepted as war-caused. In particular, Mr Kelly submitted that the respiratory problems that Mr Roberts suffers arise from asthma not from the effects of pleural plaques. He submitted that his atrial fibrillation is well-controlled by medication. Mr Kelly says that Mr Roberts’ unfounded perceptions of his prognosis are the stressors that give rise to his anxiety and that I should accept Dr Gold’s diagnosis and conclude that Mr Roberts does not suffer from anxiety disorder due to a generalised medical condition.
33. For the reasons given above I do not agree. Under s120(1), the hypothesis will be established unless facts necessary to support the hypothesis are disproved or other facts are proved that are inconsistent with those raised by the hypothesis. In regard to the fourth step in Deledio, pursuant to s120(1) I am not satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Roberts’ anxiety is war-caused. I accept his evidence as truthful: it is uncontradicted by other evidence; and it is supported by those medical practitioners who are in the best position to know, that is his treating psychiatrists. I do not see Mr Roberts’ concerns as unfounded, especially in the context of medical evidence that he is predisposed to react in the way that he does.
34. As the Federal Court stated in Repatriation Commission v Crane [2004] FCAFC 86, although in comment upon a different factor in the Statement of Principles:
…if a reasonable hypothesis of a relationship between pleural plaques and exposure to asbestos dust during operational service is accepted (as it has been), it is not a difficult step to find that there is a reasonable hypothesis of a relationship between an anxiety disorder about asbestosis and exposure to asbestos dust during operational service.
35. Because Mr Roberts’ hypothesis is pointed to by the evidence and is not excluded beyond reasonable doubt it follows that Mr Roberts’ anxiety disorder is war-caused within the meaning of s9 of the Act.
DECISION
36. The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s anxiety disorder and atrial fibrillation are war-caused with effect from 5 October 2003. The Tribunal remits to the respondent the assessment of the rate of pension payable.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member
Signed: .....................................................................................
P Richardson, Legal Research OfficerDate/s of Hearing 12 July 2006
Date of Decision 17 July 2006
For the Applicant Mr MJ Taylor, of Counsel
For the Applicant Wallace Davies, Solicitors
For the Respondent Mr J Kelly, Departmental Advocate
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