Roberts and Repatriation Commission (Veterans’ entitlements)

[2016] AATA 587

Roberts and Repatriation Commission (Veterans’ entitlements) [2016] AATA 587 (10 August 2016)

Division	Veterans' Appeals Division
File Number	2015/2354
Re	Colleen Roberts
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	10 August 2016
Place	Melbourne

The Tribunal affirms the decision under review.

................................... [sgd].....................................

Miss E A Shanahan, Member

VETERANS’ AFFAIRS – disability pension claim – accepted condition of chondromalacia patellae – aggravation by a fall in August 2000 during operational service – claim for major depressive disorder and generalised anxiety disorder arising from persistent knee pain – past and pre-service psychiatric history – failed claims for aggravation of pre-existing psychiatric disorder under the Military Rehabilitation and Compensation Act2004 – decision affirmed.

Legislation

Veterans’ Entitlement Act 1986

Cases

Repatriation Commission v Cooke (1998) 90 FCR 307

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Bey (1997) 79 FCR 364

Re A’Bell and Repatriation Commission (1999) 58 ALD 721

Repatriation Commission v Yates (1995) 57 FCR 241

Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533

Repatriation Commission v Milenz (2006) 93 ALD 107

Secondary Material
Statement of Principles Instrument No 37 of 2008 Adjustment disorder
Statement of Principles Instrument No 27 of 2008 Depressive disorder
Statement of Principles Instrument No 83 of 2015 Depressive disorder
Statement of Principles Instrument No 101 of 2007 Anxiety disorder

REASONS FOR DECISION

Miss E A Shanahan, Member

10 August 2016

1. Ms Roberts served in the Royal Australian Air Force (RAAF) from 30 January 1991 until her separation from the force on 28 July 2013 on medical grounds. During her service, Ms Roberts was deployed to Timor-Leste (East Timor) from 31 January 2000 to 31 August 2000. It is accepted that this service is operational service within the meaning of s 6(c) of the Veterans’ Entitlement Act 1986 (the Act).

2. On 24 July 2012, Ms Roberts lodged a claim for disability pension. Ms Roberts claimed incapacity for chondromalacia patellae of both knees, lower back problems later diagnosed as lumbar spondylosis, a depressive disorder and generalised anxiety disorder (GAD). On 26 February 2013, the Repatriation Commission (the Commission) rejected the claim on the basis that the conditions were not service related.

3. Ms Roberts lodged an application with the Veterans’ Review Board (VRB) for review of the decision. This was initially heard on 12 November 2013 but was adjourned indefinitely, with the VRB requesting further information. On 17 February 2015 the VRB reconsidered the application and accepted that the condition of chondromalacia patellae of both knees and lumbar spondylosis were war-caused, as defined in s 9 of the Act, and that a pension was payable as from 24 April 2012. The claims for major depressive disorder (MDD) and generalised anxiety disorder (GAD) were rejected. The decision of the Commission with respect to the psychiatric disorders was affirmed.

4. Ms Roberts lodged her application for review with the Administrative Appeals Tribunal on 8 May 2015. Ms Roberts was represented by Ms Rachael Walsh of counsel, instructed by Williams Winter solicitors. Mr Ken Rudge, a solicitor in the employ of the Commission appeared for the Repatriation Commission. The Tribunal was provided with the documents lodged by the Commission in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents). Both parties tendered further documentation a list of which is appended to this decision. Ms Roberts gave oral evidence before the Tribunal. Dr James Hundertmark, a psychiatrist, also gave oral evidence by telephone.

   BACKGROUND TO THE APPLICATION

5. Ms Roberts (nee Davis) enlisted in the RAAF on 30 January 1991. She was discharged on 28 July 2013. At all times during her service she was employed in a clerical or administrative role.

6. Throughout her 22½ years in the RAAF Ms Roberts attracted what could be broadly stated as good to very good reports regarding her work performance. She was assessed on at least an annual basis and was promoted in 1997 to the rank of corporal and in January 2004 to that of sergeant. On the RAAF scale of A to C-, Ms Roberts attracted a level of B- to B+ in her various roles. These included working in aviation operations in the peacekeeping force in East Timor and administrating the payroll for Australian Defence Force (ADF) forces at RMAF Station Butterworth while posted in Malaysia.

7. Following her return to Australia in January 2004, Ms Roberts was posted to New South Wales so that she could spend more time with her partner, from whom she had been separated for two and a half years by virtue of her service at Butterworth. They married in 2005. Her first pregnancy was confirmed in September 2005 and maternity leave was granted from 9 January 2006 until 22 July 2006 at half pay, followed by a further four and a half months of long service leave. A second pregnancy occurred the following year and Ms Roberts was granted maternity leave from 31 August 2007 until 7 April 2008.

8. After her return to work in 2008, Ms Roberts had reportedly taken a considerable time to settle into her new position in charge of the orderly room. Her performance was assessed in 2008 as being suitable, having previously being rated as highly suitable. She applied for and was granted a change in her days at work so that she worked nine days per fortnight from 10 November 2008 to 1 November 2009. This enabled her to spend more time with her young children. At the end of this period she was assessed as being highly suitable for her role and said to be outstanding.

9. Ms Roberts applied for a further reduction in her working hours. Between 3 February 2011 and January 2012 Ms Roberts reduced her work to seven days per fortnight. She was involved in developing manuals and courses for clerks employed in the RAAF. Her assessment on 20 September 2011 attracted a suitable rating. She was approved for return to full time work on 9 February 2012. In March of that year, Ms Roberts returned to work at RAAF Base Wagga, although it was acknowledged she was under medical treatment and required access to pharmaceutical supplies. On 9 July 2012 Ms Roberts was posted as non-effective on medical grounds

10. Ms Roberts’ termination had been approved on 7 May 2013 and was to take effect on 28 July 2013. The reason for her medical termination was stated to be a MDD. It was noted she had developed postnatal depression requiring treatment in 2007.

11. Ms Roberts’s detailed medical reports from 1991 until the time of her discharge from the RAAF have been made available to the Tribunal (Exhibit R3, pages 1-428). Prior to Ms Roberts posting to East Timor in 2000, the medical records relate to her recurrent initially right and thereafter bilateral knee pain, her weight gain problems and the diagnosis of bulimia nervosa.

12. Ms Roberts first complained of pain in her right knee on 14 February 1991 (Exhibit R3, page 91). In August 1993 she was involved in a motor vehicle accident. Both her knees hit the dashboard of the car she was driving (Exhibit R3, p89). In 1995 (Exhibit R3, p113) her bilateral knee pain was said to have been of two years duration and she had suffered a worsening of the pain after playing basketball. In 1997, the pain in Ms Roberts’ right knee increased after a 100 metre run. She had previously been able to run two to four kilometres without symptoms. On most of these occasions, she had analgesics and physiotherapy. Reports from two physiotherapists, Ms Abbott in 1995 and Ms Gamlin in 1997 have been received.

13. On 30 September 1998, x-rays of both knees were performed. These revealed fragmentation of the lateral margins of both patellae, suggestive of degenerative change and recurrent dislocation. The patellofemoral joints were noted to be laterally subluxated while the knee joint proper was normal on both sides.

14. Ms Roberts had been advised to continue with the exercises demonstrated to her by the physiotherapist and to use strap taping of her thighs above the patellae when performing any sport or running. This she did quite diligently for some time but by the time she arrived in East Timor she had abandoned this practice. In most instances Ms Roberts’s knee pain settled over a period of weeks with non-steroidal anti-inflammatory medication and physiotherapy. In November 1994, Ms Roberts complained of constant knee pain over a period of four months and on examination was found to have crepitus (a crackling sensation on flexion of the knees) indicative of chondromalacia.

15. In June 1995, Ms Roberts presented to Dr Kath Reynolds complaining of weight gain and provided a three and a half year history of bulimia. She sought help in the treatment of her weight gain and the bulimia. Ms Roberts said she was vomiting three times a week. It was suggested that this was self-induced. When Dr Reynolds tried to obtain further history as to any precipitating causes, Ms Roberts mentioned difficulties with her mother, which she said were very upsetting. She refused to explain further.

16. Ms Roberts was referred to a psychologist and a dietician. Dr Bruce Stevens, the psychologist provided a short note to Dr Reynolds dated 25 May 1995 stating he would focus on Ms Robert’s eating disorder. He proffered the opinion that she may be mildly depressed. In her referring letter to Dr Stevens, Dr Reynolds had stated that Ms Roberts, then Davis, had bulimia, a loss of motivation and was generally unhappy with life. She was said to be in a stable relationship of six month’s duration with her boyfriend Michael, who was also in the ADF, however Ms Roberts was about to go to Katherine for two years and her boyfriend Michael was being sent to Perth. (Exhibit R3, p 385).

17. In September 1995, Ms Roberts was reportedly stressed in relation to her grandmother, work problems and her lowered mood. One week later Dr Reynolds had a lengthy discussion with Ms Roberts after referring her to Dr Stevens and recorded that Ms Roberts’s bulimia had been much worse over the past two weeks. It had, however, improved after initial psychiatric treatment. There had been progress with Ms Salisbury in terms of dietary advice. While Ms Roberts remained unmotivated, there was no suicidal ideation reported. Apparently, Ms Roberts did not develop a rapport with Dr Stevens and failed to attend after the initial consultation.

18. On 12 August 2000 in Dili, East Timor, Ms Roberts slipped and fell while leaving the female ablutions block. She hit both knees on wooden steps, sustaining contusions (bruising), to both knees and an abrasion to the right forearm. She was seen at the United Nations Hospital by Major Hassan Ali, an orthopaedic surgeon. Major Ali prescribed non-steroidal anti-inflammatory medication, rest and physiotherapy for a period of two weeks. The report states that x-rays were taken but the results of these are not provided. Ali opined that if Mrs Roberts chondromalacia patellae was neglected it may persist and lead eventually to osteoarthritis of both knees.

19. While there are no further entries regarding the knees in her claim report dated 17 August 2012, Ms Roberts subsequently stated that after this injury she had severe pain and swelling of immediate onset lasting more than two weeks. In the same claim form she had denied ever having pain prior to this fall. In other data provided to the Commission she stated that she had minor short lived episodes of knee pain prior to the fall in Dili.

20. Ms Roberts returned to Australia in October 2000. There are no entries in that year relating to her knee joints or patellofemoral articulation. She was certified as having no psychological or physical reason debarring her from deployment to RMAF Butterworth in Malaysia. This deployment commencing in December 2000 was initially to August 2001. With extensions of time thereafter, Mrs Roberts remained at Butterworth for three and a half years.

21. While at Butterworth, the first medical entry provided is dated 13 February 2001 when Ms Roberts presented with left sided groin pain and an ache in the left iliac fossa. The latter was described as constant and deep seated and was said to have been present for six months. In addition, Ms Roberts was worried by the report of a November 2000 Pap smear. The third problem listed by the service doctor, Dr Menon, was that of bilateral knee pain occurring when walking down stairs and said to have increased in severity over the preceding three months. The past history of basketball injuries to her knees was noted as was the previous diagnosis of lateral tracking of the patellae for which she had been prescribed exercises aimed at strengthening her vastus medialis muscles.

22. The reporting medical officer considered Ms Roberts to be depressed as a result of the pain and concerned about the Pap smear result. Arrangements were made for Mrs Roberts to see an obstetrician/gynaecologist with a view to undergoing various pelvic and vaginal scans. Knee guards and taping of the thighs was recommended, as was reassessment of her exercise program.

23. There is no further medical record of knee pain or discomfort until 3 October 2001, when Dr Menon noted that Ms Roberts had not tried thigh taping since arriving in Butterworth as she felt it had not previously been of benefit. In November 2001, as Ms Roberts’ knees were still troublesome, Dr Menon arranged a referral to an orthopaedic surgeon who advised arthroscopy and lateral patellofemoral release. Dr Menon noted that Ms Roberts seemed to feel very isolated, felt her colleagues were avoiding her and that no one in the workplace liked her. A formal psychological consultation was considered. Dr Menon discussed this with two members of staff, Flight Lieutenant Riley and Sergeant Plass, who concurred. It was decided that they would keep a close eye on Ms Roberts.

24. Bilateral arthroscopy was performed with lateral release of the right patella in January 2002. At review on 17 January 2002, Dr Menon noted that Ms Roberts was very upset and angry that no one had visited her while she was in hospital. Ms Roberts was described as being slightly irrational in her description of events. The orthopaedic surgeon who had performed the procedures had regarded her behaviour as disproportional to the severity of the procedure, given that she had had an uncomplicated operation and recovery. Dr Menon recommended Ms Roberts speak with the service Padre and she subsequently did, with apparent benefit. On 22 January 2002, Dr Menon wrote that she was most cheerful today than in the last 9/12.

25. Dr Menon reviewed Ms Roberts on a regular basis thereafter for counselling and noted a weekly improvement. By 21 March 2002, Mrs Roberts was described as being cheerful and upbeat. It was noted that she had recovered from her surgery. Physical examination revealed a full range of movement of both knees with only an occasional twinge of pain. Ms Roberts was declared fit for return to full duties. While at Butterworth, Ms Roberts was referred to a gynaecologist who found no gynaecological abnormality to explain her groin and left iliac fossa pain. Annual Pap smears were recommended. These were performed regularly thereafter and were all negative.

26. In 2005 Ms Roberts was investigated for infertility with a view to IVF and shortly thereafter became pregnant. Her first child was born in 2006. In December 2007, her Pap smear revealed abnormal cells with a rating of CIN3 (cervical intraepithelial neoplasia, grade three). In January 2008, she had loop excision of the cervix which confirmed the evidence of dysplasia and also some viral activity. Further studies in June 2008 showed the same findings. By November 2008 and thereafter, Ms Roberts’ Pap smears were clear. A hysterectomy was performed in May 2012. The indication for such surgery is said to have been urinary stress incontinence. The resected uterus was normal on histopathology.

27. Following her second pregnancy Ms Roberts developed post-natal depression, for which she received psychological counselling and was prescribed the anti-depressant Cipramil. She took this for approximately six months. Cipramil was ceased in September 2008, when she was said to be well and stable.

28. In October 2011, Ms Roberts re-presented to the medical staff requesting treatment for obesity, she having gained a considerable amount of weight in the previous six to twelve months. She requested the appetite suppressant Duromine. She had taken this before without ill effect. Duromine was prescribed. In May 2012, Mrs Roberts was referred to a psychologist after she complained of work stress, tiredness, non-restful sleep, loss of confidence and a feeling of guilt in relation to her family responsibilities. Counselling was commenced. When she did not improve with counselling, she was referred to a psychiatrist, Dr Brian White. Dr White saw Ms Roberts on 7 July 2012. She was commenced on the anti-depressant Lexapro. Dr White diagnosed a MDD.

29. In his report of 7 July 2012 addressed to Dr J Masters at RAAF Base Wagga,  Dr White stated that Ms Roberts had:

    ... a history of recurrent anxiety and depression over the years. I am unsure if this had ever completely resolved. The depression has been aggravated by significant medical problems including the surgery for her knees. ...

    Dr White recommended Lexapro, 5 mg at night for one week then 10 mg thereafter. Dr White placed Ms Roberts on sick leave for one month and recommended she continue to see a clinical psychologist for cognitive behaviour therapy.

30. Dr White reviewed Ms Roberts in May 2013. She was said to be still having occasional nightmares and poor sleep, although her mood was overall better during the day and she was less tearful on her current dose of Escitalopram of 30 mg daily.

31. Dr White saw Ms Roberts on a fourth occasion on 26 August 2013, he having not seen her at that stage for three months. He reiterated his opinion and in particular stated that he considered that her GAD and MDD were brought on by stressors experienced in East Timor in 2000, including the knee injury. Dr White recommended Ms Roberts change her medication to Cymbalta 60 mg per day. He considered her permanently unfit for operational deployment and currently unfit for any work. Dr White recommended that Ms Roberts continue to see her psychologist and that she increase the Cymbalta to 120 mg a day in due course.

    ORAL EVIDENCE BEFORE THE TRIBUNAL

    The Applicant

32. Ms Roberts gave evidence which, in essence, affirmed her account in her witness statement of the events that occurred in August 2000 in East Timor. The only variation was that she said that the pain in her knees continued unabated from the time of the fall and throughout her posting to Malaysia. She described the pain as a generalised ache with sharp episodes which restricted her walking on sand, her ability to run, walking any distances and driving an automatic vehicle. Stair climbing and horse riding were extremely difficult. She also stated that the pain was unaltered by the surgery undertaken in January 2002.

33. Ms Roberts described her psychological symptoms as being very sad, feeling dark like being in a well and only able to see one metre in front of her, feeling alone and getting deeper. This she said commenced in East Timor within 10 days of the fall injuring her knees. This lowering of mood as described had, she said, stayed with her until she had surgery in January 2002. She agreed that she was concerned about her Pap smear results, but maintained her claim that knee pain was her most significant distressing symptom.

34. Ms Roberts confirmed that she had suffered bulimia nervosa for a period for more than two and a half years in the 1990’s.She stated that this had been associated with a lowered mood. Ms Roberts also agreed that she had felt that she lacked motivation during that period, had been extremely unhappy and experienced work problems while she was posted in Canberra in the 1990s. She confirmed that she and Dr Stevens, who had seen her in relation to her bulimia, did not get on.

1. Ms Roberts described her current psychological status as being very irritable, frequently losing her temper with her children and becoming aggressive. She said when exposed to any stress she lost the plot. She said she had never been like that before the fall. Currently her social life was zero, she did not indulge in any sport and remained depressed. Ms Roberts confirmed that she had postnatal depression after the birth of her second child.

2. In cross-examination by Mr Rudge, Ms Roberts said that the difficulties she had experienced with her mother and grandmother as reported in 1995 were minor communication stuff. She agreed that she had been very worried by the results of her Pap smear and left iliac fossa pain in 2001. She disagreed with Dr Menon’s report of 21 March 2002, which stated that Ms Roberts had recovered well from her knee surgery and was upbeat and doing well.

3. Ms Roberts said she told Dr Menon what she, Dr Menon, wanted to hear. She said she had not complained of ongoing knee pain in her medical assessment before going to Butterworth or thereafter because she felt to do so would impact on her employment and promotion. In relation to her assessments over many years which indicated that she was excelling in all fields both before and after the injury, Ms Roberts considered that the reports she received were always over-generous as most units were understaffed and anxious to keep their current staff.

4. Overall Ms Roberts felt that the RAAF did not encourage their members to discuss their mental health issues or seek treatment. Ms Roberts claimed she had hidden her condition from her supervisors to protect her employment. Ms Roberts agreed that she had passed all her fitness tests in Malaysia, but stated that she had done so under great duress and with resulting pain.

5. Ms Roberts confirmed that she has not had any psychiatric treatment or seen a psychologist since her last visit to Dr White in August 2013. While Dr White had prescribed a larger dose of Cymbalta, her general practitioner in the Northern Territory had reduced this to 60 mg, which is half the dose recommended by Dr White. Ms Roberts was planning to again make contact with a psychologist.

   Dr James Hundertmark, psychiatrist

6. Dr Hundertmark had seen Ms Roberts on 2 November 2015 at the request of the Department of Veterans’ Affairs. In his report of 20 November 2015, he detailed the history he obtained and his diagnosis of a moderate MDD and an eating disorder. The latter had now resolved, although disordered thinking regarding eating still affected Ms Roberts. He opined that the psychiatric illness developed in 1995 when treatment was first provided for bulimia nervosa, a condition from which Ms Roberts had suffered for many years.

7. Dr Hundertmark obtained a very detailed history from Ms Roberts and this was supported by the service medical records, the psychology reports from ADF and reports of Dr Albert Kaplan and Dr Brian White.

8. In the consultation with Dr Hundertmark, Ms Roberts declared she had only experienced issues with anxiety and depression since the fall in August 2000. She did, however, agree that she had suffered from bulimia nervosa from puberty. Ms Roberts described her fall in East Timor in detail, including what she considered her inadequate treatment at the time. She stated that an Egyptian doctor gave me some stuff and sent me on my way.

9. Dr Hundertmark relied primarily on the various reports provided between the year 2000 and 2007, when Ms Roberts had suffered from postnatal depression. He acknowledged that she had been fearful regarding acknowledging the presence of mental health symptoms whilst in the RAAF as to do so might result in her dismissal from the ADF.

10. At the time of the consultation, Dr Hundertmark regarded Ms Roberts as having ongoing symptoms of depression and suspected that she was not functioning well. Her sleep and appetite remained poor, she felt fatigued at all times and admitted to having suicidal ideation in 2011. She stated that she was going to seek further psychiatric advice and treatment once her husband was relocated to Darwin.

11. Based both on the consultation with Ms Roberts and the documentary evidence provided, Dr Hundertmark made a diagnosis of a moderate MDD that had developed in 1995 in the setting of several years of bulimia nervosa, aggravated significantly by postnatal depression and difficulties in balancing her work requirements and the demands for caring for two young children.

12. In his oral evidence, Dr Hundertmark confirmed his diagnosis of a MDD but stated he did not believe Ms Roberts met the criteria for GAD. Dr Hundertmark accepted that Ms Roberts did have some symptoms of anxiety. He rejected Dr Kaplan’s diagnosis of an adjustment disorder, on the basis that it was a diagnostically weak classification.

13. Dr Hundertmark confirmed his opinion that Ms Roberts had developed a psychiatric disorder in the form of bulimia nervosa in the early 1990s and this condition had waxed and waned over the years, becoming worse when she was exposed to stressors. He advised that when Ms Roberts was first seen in 1995, she did not meet the criteria for a diagnosis of a MDD.

14. In questioning by Mr Rudge, Dr Hundertmark agreed that the use of the appetite suppressant Duromine could have an adverse side effect in persons predisposed to depressive disorders. In addition, Dr Hundertmark acknowledged that Duromine could interact with anti-depressive medication.

15. In cross-examination by Ms Walsh, Dr Hundertmark agreed he had misinterpreted and mistakenly ascribed the term loss of motivation to the psychologist Dr Stevens when, in fact, that description had been made by the referring general practitioner Dr Reynolds.

16. Dr Hundertmark agreed that Dr Reynolds description of Ms Roberts in her letter of referral to Dr Stevens, which stated she was suffering from bulimia, loss of motivation and was generally unhappy with life, insufficiently addressed the symptomatology required for a diagnosis of MDD. Dr Hundertmark said that these were all common symptoms in a person with depression, but not sufficient to satisfy DSM-V criteria for the diagnosis of a MDD. It was noted, however, that there were no entries in the service medical records between 1995 and 2008 referring to Ms Roberts’s mental state. There were short episodes of low mood or, more correctly, labile mood. Dr Hundertmark did not believe that Ms Roberts had sufficient symptoms to found a diagnosis of GAD.

17. Dr Hundertmark summarised his opinion in terms of Ms Roberts having a psychiatric disorder, diagnosed in 1995 as bulimia nervosa. This thereafter waxed and waned, according to stressors in her life. Ms Roberts was not diagnosed with definite depression, albeit in the postnatal setting, until 2007. Dr Hundertmark did not believe that Ms Roberts fall in East Timor made any contribution to her MDD.

18. The Tribunal asked what effect, if any, Ms Roberts’ hysterectomy and difficulties in conceiving may have had on her psychological state. Dr Hundertmark believed that Ms Roberts’ fertility issues, her need for IVF, postnatal depression and then a hysterectomy in 2012 all had major effects. Dr Hundertmark believed each of them had a far greater than the effect than either the fall or the arthroscopy and lateral patellofemoral release of 2002.

    DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL

19. The Tribunal had Ms Roberts entire personnel file and in-service medical records from 1991 until she was discharged from the RAAF. The relevant entries in both of these have been referred to under BACKGROUND TO THE APPLICATION.

20. Ms Roberts was seen by Dr A Nicholas, a clinical psychologist, in 2008. At this time, Dr Nicholas made a diagnosis of mild depression and some anxiety that he attributed to Ms Roberts’ work, family demands and the difficulty in balancing the two. No mention was made of continuing knee pain or the fall in East Timor. Dr Nicholas regarded Ms Roberts as having a reactive depression, secondary to her difficulties with her family/work balance (reactive depression is now termed an adjustment disorder). Dr Nicholas provided Ms Roberts with strategies to manage her time, secure some time for herself and to develop a plan to address family/work balance.

    Dr Albert Kaplan, psychiatrist

21. Dr Kaplan saw Ms Roberts on 16 September 2015 and subsequently provided two reports. The report of this consultation was provided by letter dated 21 September 2015. A supplementary opinion relating to the medical report provided by Dr Hundertmark was provided in a further letter dated 28 September 2015.

22. Dr Kaplan did not refer to any medical or psychological history prior to Ms Roberts’s posting to East Timor between January and September 2000. He outlined the fall of August 2000, which led to persisting knee pain and eventually to an arthroscopy and lateral release of her right patella while at Butterworth in early 2002. Dr Kaplan noted that Ms Roberts was in severe pain post-operatively and received no support from the RAAF. Ms Roberts had to rely on a friend to bring her meals at a time when she was confined to using crutches and living in a third floor apartment in Penang.

23. Ms Roberts told Dr Kaplan that she had been instructed to return to work ten days after the surgery and struggled to commute by bus on a daily basis. She stated she felt let down, lonely … a bit angry. It was said that Ms Roberts faced further stresses during her term in Butterworth. When she returned to Australia in 2004, she found the workplace tense as work was being outsourced and civilians, who did not share the RAAF culture, were being employed by the RAAF. The pain in her knees continued and she struggled to maintain fitness. As a result, she gained weight and became fearful she would be discharged on medical grounds.

24. Dr Kaplan recorded that it was not until 2012 that Ms Roberts was referred to a psychiatrist. She attended for some months, but after shifting to the Northern Territory has only recently made contact with a counsellor. Ms Roberts was taking Cymbalta.

25. Ms Roberts appears not to have given Dr Kaplan any history relating to her bulimia. She stated that she was involved in a motor vehicle accident in 1993 and briefly experienced pain in her knees but fully recovered from those injuries. At the time of the consultation Ms Roberts weighed 95 kilograms, her weight on enlistment having been 62 kilograms. Ms Roberts described symptoms of intense anxiety, suicidal ideation, broken sleep, nightmares, reduced libido, lack of interest in social activity and poor memory and concentration. Ms Roberts claimed that she had recovered fully from the postnatal depression she developed following the birth of her second daughter.

26. Dr Kaplan made a diagnosis of an adjustment disorder with mixed anxiety and depressed mood. He found it difficult to determine when her psychiatric condition commenced but on the history given, timed it as being in 2002 after her knee surgery. Dr Kaplan identified the stressor causing the adjustment disorder as being Factor 6(h) in  Statement of Principles (SoP) Instrument No 37 of 2008, that being chronic pain of three months duration prior to the onset of her psychiatric disorder.

27. Dr Kaplan was provided with Ms Roberts’s personnel file, some medical data and the report of Dr Hundertmark and asked to comment. Dr Kaplan addressed this in his subsequent report dated 28 December 2015.

28. Dr Kaplan concluded that, in light of the information provided, Ms Roberts had been suffering from psychological difficulties prior to the fall in 2000. He concluded that it was difficult to assess how severe her pain had been prior to that year and what impact, if any, her knee pain had upon her mental state at the time. He noted that she had suffered from Bulimia from the early 1990s and, while her mood was affected, it was not possible to assess retrospectively if she was clinically depressed. He rejected the diagnosis of a MDD and asserted that his diagnosis of an adjustment disorder was the appropriate one on the available information.

29. Despite his conclusion that it was not possible to determine whether Ms Roberts was clinically depressed prior to the year 2000, Dr Kaplan agreed that over the years Ms Roberts’s adjustment disorder had been caused by a number of stressors in her life, including her chronic knee pain and the pressures of raising her young children while working full time.

    RELEVANT LEGISLATION

30. Section 9 of the Veterans’ Entitlement Act 1986 (the Act) provides that:

    9  War caused injuries or diseases

    (1)... an injury suffered by a veteran shall be taken to be a war caused ... if:

    ...

    (b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

    Section 9(1)(e) excludes injuries or disease in certain circumstances:

    (e)the injury suffered, or disease contracted, by the veteran:

    (i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

    (ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

    and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;

    However, s 9(6)(b) excludes s 9(1)(e) if the veteran has:

    (6)       ...

    (b)unless the veteran had rendered operational service or the period of eligible war service rendered by the veteran that so contributed to the injury or disease, or by which the injury or disease was aggravated, was 6 months or longer.

31. As Ms Roberts claims that the injury resulting in her developing a major depressive disorder occurred during operational service the standard of proof attracted is that provided in  s 120(1) and s 120(3) of the Act which state:

    120  Standard of proof

    (1)Where a claim under Part II for a pension in respect of the incapacity from 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) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, 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)that the death was war caused or defence caused;

    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.

32. As the claim relates to a condition manifest after the introduction of the Statements of Principles in 1994, s 120A is attracted. Section 120A states:

    120A  Reasonableness of hypothesis to be assessed by reference to Statement of Principles

    (1)This section applies to any of the following claims made on or after 1 June 1994:

    (a)a claim under Part II that relates to the operational service rendered by a veteran;

    (b)a claim under Part IV that relates to:

    (i)     the peacekeeping service rendered by a member of a Peacekeeping Force; or

    (ii)     the hazardous service rendered by a member of the Forces; or

    (iii)     the British nuclear test defence service rendered by a member of the Forces.

    Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.

    Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service, member of the Forces and British nuclear test defence service see subsection 5Q(1A).

    (2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

    (a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or

    (b)has declared that it does not propose to make such a Statement of Principles.

    (3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

    (a)a Statement of Principles determined under subsection 196B(2) or (11); or

    (b)a determination of the Commission under subsection 180A(2);

    that upholds the hypothesis.

    Note:    See subsection (4) about the application of this subsection.

    (4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

    (a)the kind of injury suffered by the person; or

    (b)the kind of disease contracted by the person; or

    (c)the kind of death met by the person;

    as the case may be.

33. In relation to the diagnosis of the medical conditions from which Ms Roberts suffers, s 120(4) provides that this should be determined to the Tribunal’s reasonable satisfaction.

34. Ms Roberts has nominated the SoP Instrument No 27 of 2008 or Instrument 83 of 2015 relating to a depressive disorder, Instrument No 101 of 2007 relating to and anxiety disorder and Instrument No 37 of 2008 relating to an adjustment disorder.

35. The Tribunal is required to follow the four step process in determining whether an applicant satisfies the requirements of a reasonable hypothesis. The Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 delineated these steps as follows:

    1.        The Tribunal must 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 such hypothesis arises, the application must fail.

    2.        If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

    3.        If a SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

    4.        The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

1. Section 9(a) of the Act directs that on the commencement of the Military, Rehabilitation and Compensation Act 2004 (the MRC Act), injury and diseases sustained or contracted in relation to service are compensable under the MRC Act where aggravated or materially contributed towards by service. The Tribunal notes that Ms Roberts has already made applications under the MRC Act and these were unsuccessful.

   SUBMISSIONS

   The Applicant

2. Ms Walsh submitted that the Tribunal should accept the opinion of Dr White, as he had been the treating psychiatrist. Dr White had made a diagnosis of both a MDD and a GAD based on the history he had obtained from Ms Roberts. Ms Walsh contended that the opinion of Dr Hundertmark relating to the earlier diagnosis of bulimia nervosa and possible depression in 1995 was unreliable as there was no medical report to confirm Ms Roberts’s evidence and history that she suffered from bulimia.

3. Ms Walsh submitted that Ms Roberts’s depression related purely to the fall occurring in East Timor on 12 August 2000, resulting in persistent severe chronic pain of more than three months duration leading eventually to MDD. Ms Walsh submitted that this satisfied the SoPs of 2008 and 2015. Ms Roberts’s chronic knee pain had been accepted as war-caused as a result of the aggravation of her well documented pre-existing chondromalacia.

4. Ms Walsh contended that Ms Roberts’s evidence regarding her mood and depression was repeatedly and consistently stated to have commenced 10 days after the fall, with her mood being described as very dark and like being in well that seemed to be getting deeper. This feeling has persisted to the present. Ms Walsh attributed the lack of entries in the medical records and personnel file regarding attempts to seek medical advice for MDD to Ms Roberts’ fear that she would be found unfit to serve in the RAAF if her symptoms became known.

5. Ms Walsh differentiated Ms Roberts’ postnatal depression in 2007 to 2008 as being unrelated to her MDD. Ms Walsh contended that even if Ms Roberts did have a degree of depression in the 1990s, its impact had been minimal compared to the clinical worsening of the pre-existing condition as a consequence of the fall and injury to the knees in East Timor in August 2000.

   The Respondent

6. Mr Rudge submitted that the Tribunal should accept Dr Hundertmark’s opinion and diagnosis. Mr Rudge submitted that Dr Hundertmark was the only psychiatrist who had obtained a complete medical history dating back to 1991. This included details provided by Ms Roberts, although these were not confirmed by medical opinion with the exception of the referrals by Dr Reynolds to Dr Stevens. Both the personnel documents and the service medical records confirm the problems with bulimia nervosa and family problems in the 1990s.

7. Mr Rudge contended that there were no referrals to psychologists in 2001 or 2002. The health problems reported in the medical file related primarily to gynaecological problems and concern regarding Pap smear results. While the arthroscopy performed in early 2002 had resulted in temporary symptoms of distress when Ms Roberts did not receive any visitors while in hospital or any assistance from the RAAF, these were short-lived. This was consistent with Dr Hundertmark’s opinion that Ms Roberts’s symptomatology had waxed and waned since 1995.

8. It was contended that Ms Roberts’s postnatal depression and treatment with Cipromil was well documented. In addition, Ms Robert’s saw Dr Nicholas on several occasions and while he identified multiple stressors, Ms Roberts did not complain of any knee problems. Mr Rudge contended that thereafter the reports from various doctors, including the general practitioner and further psychiatric opinion, detailed continuing depression associated with work/home balance and work stress.

9. In relation to the question of aggravation or symptomatic worsening of a MDD, Mr Rudge cited the decisions of the Federal Court in Repatriation Commission v Yates (1995) 57 FCR 241, where Lindgren J quoted the High Court decision in Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533. The decision in Asioty stressed the importance in distinguishing between the worsening of symptoms and the aggravation of a pre-existing disease. In Yates, the Federal Court found that the Tribunal was in error in determining that the temporary worsening of symptoms was equivalent to an aggravation of the underlying disease.

10. Mr Rudge also referred to Re A’Bell and Repatriation Commission (1999) 58 ALD 721, which was determined by Deputy President McMahon four years after the decision in Yates. Deputy President McMahon criticised the use of the phrase clinical worsening as it did not convey a concept of aggravation. With reference to the decision in Asioty, it was determined that temporary worsening of symptoms and temporary incapacity does not equate to worsening of a pre-existing condition.

11. Mr Rudge submitted that the Tribunal could find could find that the material did not raise a reasonable hypothesis and therefore Step 1 of Deledio was not satisfied. It was further submitted that based purely on the material, the Respondent considered the onset of Ms Roberts’s psychiatric disorders as being 1995. Although the symptoms, waxed and waned, there was no worsening of the underlying condition in the period of 2001 to 2002.

    TRIBUNAL’S DELIBERATIONS

12. Ms Roberts claim under the Act arises from her operational service of seven months between 31 January 2000 and 31 August 2000, when she was deployed to East Timor. On 12 August 2000 Ms Roberts suffered a fall, injuring her knees. This resulted in an aggravation of her bilateral chondromalacia patellae, a condition that had been well documented in her RAAF medical file since 1991.

13. The diagnosis had been confirmed by x-ray on 30 September 1998, which had shown a developmental anomaly of increased lateral tracking, resulting in repeated subluxation and dislocations of both patellae in their relation to their articulation with the femur. As a result, Ms Roberts had chondral irregularity and degenerative changes in the patellae. The VRB accepted that this was an aggravation of the pre-existing condition, occurring as a result of Ms Roberts’s operational service.

14. The claim to be reviewed by this Tribunal relates to the development of a psychiatric disorder said to have arisen from the injury to the knees in August 2000. The claim relies on the SoP Instrument No 83 of 2015 or, in the alternative, Instrument No 27 of 2008 in relation to a depressive disorder.

15. Factor 6(a)(ix) of Instrument No 27 of 2008 identifies a causative factor as being chronic pain of at least three months duration at the time of the clinical onset of the depressive disorder. Ms Roberts’s claim is based on the Factor 6(a)(ix) or the similarly stated factor in Instrument No 83 of 2015, relating to chronic pain of three months duration.

16. The VRB accepted the claim for aggravation of chondromalacia patellae. It rejected the claims for MDD or, in the alternative, an adjustment disorder on the basis that the material before it did not raise a reasonable hypothesis connecting the condition to Ms Roberts’s operational service.

17. Before proceeding to consideration of the hypothesis the Tribunal must determine, to its reasonable satisfaction pursuant to s120(4) of the Act, the diagnosis, or at least the nature of the medical condition on which the claim is based (Repatriation Commission v Cooke (1998) 90 FCR 307). This is also of importance, as the Tribunal must determine the actual diagnosis in order to apply the relevant SoP.

18. Based on the evidence of three psychiatrists, Dr White who saw Ms Roberts on four occasions over a period of 18 months and Dr Kaplan and Dr Hundertmark, both of whom saw her on one occasion only, the Tribunal determines that the correct diagnosis is that of a MDD. While Dr White also made a diagnosis of GAD, this was not supported by his descriptions of the symptomatology. Dr Kaplan’s diagnosis of an adjustment disorder with depressed and anxious mood was certainly attracted by the claimed psychiatric disorder being secondary to the physical injury. Dr Kaplan had also provided a differential diagnosis of a MDD.

19. Dr Hundertmark opined that Ms Roberts’s onset of MDD was in 1995 and was related to her longstanding diagnosis of bulimia nervosa, present since puberty. He regarded the bulimia nervosa to have waxed and waned throughout her life and to still be a feature of concern in 2016. While he agreed that in 1995 Ms Roberts did not satisfy all the required criteria for a diagnosis MDD, the Tribunal notes that 96% of bulimia nervosa sufferers are women and the condition is frequently associated with depression. This data comes from the Tribunal’s reading of the Diagnostic and Statistical Manual of Mental Disorders Edition V (DSM-V), to which Dr Hundertmark had referred.

20. Dr Hundertmark was of the opinion that Ms Roberts’s MDD was multifactorial in origin and related primarily to her difficulties in balancing her work and family responsibilities. Dr Hundertmark’s clinical history reporting was the most detailed of all of the psychiatrists. The reports and opinions of Doctors White and Kaplan are regrettably deficient, in that they did not have any history of Ms Roberts’s physical or mental health prior to the year 2000.

21. The formal diagnosis of a MDD was made by Dr White in 2012. Based on the history given to him by Ms Roberts, Dr White believed the clinical onset of the condition was in the year 2000 while Ms Roberts was deployed to East Timor. The same conclusion was reached by Dr Kaplan in 2015. The Tribunal relies on Dr Hundertmark, given that he is the only psychiatrist who had a full clinical history in relation to Ms Roberts.

22. Dr Hundertmark’s opinion is supported by Ms Roberts’s service medical records and personnel records. There are numerous entries relating to her knees and her psychiatric disorder of bulimia nervosa in the 1990s. There are limited records relating to her knees and their psychological effect in early 2002. These effects appear, in the opinion of the treating medical officers, to have completely resolved within a period of a few weeks.

23. There is no evidence of Ms Roberts having any difficulties in meeting her requirements for both work and family commitments until the year 2007 and thereafter. Ms Roberts’s personnel file was glowing in its reports from the year 2000 until the birth of her first child. She was regarded as an exemplary performer and her services were clearly greatly valued.

24. Having examined all of the material, the Tribunal finds that no reasonable hypothesis relating Mrs Roberts’s operational service to her subsequent diagnosis of a MDD is raised. This is the same finding as that reached by the VRB.

25. The Tribunal therefore affirms the decision under review.

95.     I certify that the preceding 94 (ninety-four) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member.

...................................[sgd].....................................

Associate

Dated             10 August 2016

Date of Hearing	10 May 2016 – 11 May 2016
Counsel for the Applicant	Ms Rachel Walsh
Solicitors for the Applicant	Williams Winter Solicitors
Advocate for the Respondent	Mr Ken Rudge
Solicitors for the Respondent	Department of Veteran’s Affairs, Review Section

APPENDIX - EXHIBITS

APPLICANT

A1       Statement of Colleen Roberts dated 25 May 2015.

RESPONDENT

R1      T-Documents.

R2      RAAF Personal File of Colleen Roberts.

R3      Medical file relating to service.

R4      Psychologist Reports.

R5      Psychiatric Report of Dr James Hundertmark dated 20 November 2015.

R6      Letter – Repatriation Commission to Dr James Hundertmark.

R7      Psychiatric Report of Dr Albert Kaplan dated 21 September 2015.

R8      Psychiatric Report of Dr Albert Kaplan dated 28 December 2015.