Robertson and Repatriation Commission
[2006] AATA 1095
•15 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1095
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/89
VETERANS' APPEALS DIVISION ) Re IAN ROBERTSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr D Weerasooriya, Member Date15 December 2006
PlacePerth
Decision The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s conditions of irritable bowel syndrome and generalised anxiety disorder are defence-caused, with effect from 28 July 2002. The Tribunal remits the matter to the respondent for assessment of the rate of pension.
........(Sgd. Dr D Weerasooriya)...........
Member
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – irritable bowel syndrome – diagnosis of psychiatric ailment – generalised anxiety disorder - whether defence-caused
REASONS FOR DECISION
15 December 2006 Dr D Weerasooriya, Member 1. This is an application by Mr Ian Robertson for review of a decision of the Veterans’ Review Board (VRB) dated 19 January 2005 that bipolar disorder and irritable bowel syndrome were not attributable to his eligible service.
2. At the hearing of this matter the applicant represented himself. The respondent was represented by its advocate, Mr Carl Ponnuthurai.
3. The Tribunal had before it documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 as well as exhibits (marked A and A1) lodged by the applicant.
Background
4. The applicant is now 51 years old. He served in the Royal Australian Air Force (RAAF) for a period of 26 years. He began his service in 1973 and was discharged for medical reasons in 1999, when he was 44 years of age. His entire period of service is eligible defence service within the meaning of the Veterans’ Entitlements Act 1986 (“the Act”).
5. In his application for review by this Tribunal of the VRB’s decision, the applicant gave his “reasons for application” at T1, pp 5-8. These reasons stated that “on February 25, 2001, I am medically discharged, medically unfit for further service in the ADF on psychiatric assessment (re 24th April 1997 – 30th August 1999). I am of the firm belief that my having a bowel and mental health problem between 1973 and 1983 was service related” (Tribunal’s emphasis). It is clear from this concluding paragraph that the applicant is making the point that while he was discharged as medically unfit for further service in the RAAF on psychiatric assessment of his condition in the period 24 April 1997 to 30 August 1999, he is of the “firm belief”, that his having a bowel and mental health problem between 1973 and 1983 was service related.
6. When the applicant asked for a further internal review of his claim by the Repatriation Commission, he wrote to a senior officer of the Commission explaining that “...I have refused to fly every (sic) again and not flown since 1998” (T13, p 235). He continued:
“Due to the circumstances I became unwell and I was hospitalised in December 1989 due to service related severe psychosocial stress and nightmares between May 1988 and December 1989 having suffered from paranoid ideation, lack of normal sleep, and poor appetite since May 1988.”
The Tribunal understands that the circumstances referred to were in relation to the applicant’s ex-wife’s return from Adelaide. The following is an extract from a report by Dr Mander dated 4 August 2004, labelled “Private and Confidential – not for release to client”:
“His first marriage lasted between 1982 and 1989 and he had two girls from this relationship, now aged 18 and 20. This relationship terminated when one of his service colleagues had an affair with his wife. His second marriage lasted between 1993 and 2001 and he has 3 children from this, now aged 5, 7 and 10. They live in Sydney, although he has some contact with his children when they are flown over to Perth for the school holidays...” (T3, p 23)
The Tribunal understands that the circumstances alluded to here are related to his first wife’s arrival from Adelaide to visit him and the “psychosocial stress” that resulted and is well documented.
Evidence
The applicant’s evidence
7. The respondent’s advocate, Mr Ponnuthurai, took the applicant through his Air force history. The applicant began his service in 1973. He first trained as an airman, and then as a member of catering. His first posting was at Point Cook, after which he went to Pearce. He started flying when he was posted from Pearce to Richmond in 1980. At that stage he was mustered as a steward. He was initially stewarding with the 34th Squadron in Canberra, on flights carrying VIPs. After he finished his training he was posted to Richmond, in August 1980. He left Richmond in December 1984. He then spent two years in catering in south-east Asia, and was promoted to Corporal before he left. In 1986 he went to Darwin.
8. The applicant said that in 1989 he refused to go back to flying. He was then posted to Wagga Wagga as an instructor in the School of Management and Training Technology until the end of 1996. From there he was posted to “Recruiting” in Perth and was at Recruiting until he was discharged as medically unfit in 1999. The applicant disagreed with the contention of the respondent’s advocate that he was discharged on the finding by Dr McCarthy, psychiatrist, that he was at risk of further breakdown. This was because Dr McCarthy’s report was written on 6 January 2000 and the applicant thought that the decision to discharge him was made on 19 October 1999.
9. Mr Ponnuthurai next turned to the applicant’s Statement of Facts and Contentions, which contained three attachments labelled A, B, and C. Attachment B related to a rectal swab request to the lab, dated 13 August 1981. The applicant agreed that according to his log book, he had flown and then when he came back he was complaining of problems. He was asked to identify the problems and when they started. His answer was as follows:
“Well, prior to 13 August 1981 there had been bouts of diarrhoea and a lot of wind if you like, and I think that was caused, from my training and understanding of it, from constantly going up and down under pressure……”
The Tribunal understands this feeling of being bloated to be related to changes in cabin pressure, affecting gas trapped in the bowel.
10. The applicant was then asked why the RAAF doctor felt a need to check to see if he had amoebic dysentery. The applicant would not give a direct answer but his reply seemed to indicate that he did not understand the significance of why he was being checked for “amoebic dysentery”.
11. The applicant was then asked about the bouts of diarrhoea that he had had and how long they lasted. He replied: “until you had administered the Lomotil” (Transcript, p 39). The applicant explained that the Lomotil stopped the diarrhoea, and that the Lomotil tablets were carried on the aeroplane with the first aid kit (Transcript, p 40). Mr Ponnuthurai noted that the applicant was sent to a surgeon because he had bleeding of the bowel. The applicant confirmed that that happened in 1983 (Transcript, p 40).
12. Mr Ponnuthurai then stated that the applicant had complained of two episodes of bright red bleeding from the rectum. The Tribunal notes that the RAAF doctor actually thought the bleeding was from external haemorrhoids- but had to consider other causes of the rectal bleeding and referred him for another opinion. The RAAF doctor appears to have considered, and excluded, a diagnosis of amoebic dysentery, a condition which is known to cause diarrhoea and blood in the stools (T3, p 20). The applicant said that he could remember where he was when he noticed the blood because he was “shocked by it”. He had been in Hawaii at the time. He had just happened to look before he flushed the toilet and he noticed the blood. He mentioned it to a room mate who suggested that the applicant attend a medical when he got back to base. It was following that episode that the applicant was sent for a barium enema. The Tribunal notes that a barium enema was in fact performed, but did not show anything positive (T3, p 21). This is not unusual as small polyps are often missed in barium enemas, but are visible and can be snared and removed for histology at colonoscopy, which is the examination of choice and done on numerous occasions later – in view of the high risk of a benign polyp becoming malignant or cancerous.
13. The applicant was then asked what happened with the episodes of bowel upset when he stopped flying. He answered that “there was what there is now, I guess, but I didn’t see it as irritable bowel if you like, I had no idea of what …” (Tribunal’s emphasis). The evidence continued:
“Mr Ponnuthurai: So you had wind and you had to open your bowels quite a lot?‑‑‑Yes. Yes.
At that stage was there any severe pain or any cramping?‑‑‑No. There was no pain like you get when you have constipation but there's - inside of the, you can feel there's a build up of air and it feels like you want to go to the toilet but when you go to the toilet ‑ ‑ ‑
…
Dr Weerasooriya: Also when you said "constipation", was it sort of constipation some days, diarrhoea other days, that sort of thing?‑‑‑Yes.
Or constipation, normal stool, constipation or ‑ ‑ ‑?‑‑‑The pain when you have constipation when you're trying to get - trying to get it out and it's not coming out.
Right?‑‑‑But the only reason it's not coming out it's not because you're constipated it's because really there is nothing there.
Yes?‑‑‑And it's almost like trying to turn yourself inside out to get it out.” (Transcript, p 41)
14. The applicant said that his bouts of diarrhoea and abdominal unease were not constant, but occurred when he was nervous or anxious about something.
The fireball incident
15. The applicant also gave evidence about an incident in which he saw a fire in one of the engines of an aircraft that he was stewarding in, as it was preparing to take off. Mr Ponnuthurai tried to find a time frame for the symptoms suffered and when the “fire ball incident” (described by the Writeway researcher as most likely a compressor stall) occurred. The applicant remembered that this incident happened after the time of Mr Sadat’s funeral, which was in 1981.
16. The applicant was taken through the flight details of the flight which transported the Governor General to and from Mr Sadat’s funeral. The Tribunal notes that all the VIP flights that the applicant stewarded were labelled “flight under threat of terrorism” (T4, p 196). While the Governor General was attending the funeral, the crew of the flight (including the applicant) were in Cairo for only 24 hours and stayed at a hotel near the airport. They didn’t actually go into the city and were not involved in the rioting that was going on. The country was under marshal law and was “locked down”.
17. The applicant was asked about the fireball incident. He explained:
“The reason for the fireball incident coming to light was because when Dr Chiu asked me when - like: When have you felt like that before, when we were going backwards in time. I said: Well, there was a time when I really thought the plane was going to blow up because the - of a fire I'd seen in an engine. That's where that sort of came from.
So there was a fireball in the engine. Were you on the ground or taking off at the time or just coming in?‑‑‑Yes. No, I was, we were taking off and we were leaving from the Richmond end and going towards Windsor. This is at Richmond, to take off and I was seated in the crew rest area facing backwards.
Right?‑‑‑And that's - I was in the window seat so I could see the ‑ ‑ ‑
The engine?‑‑‑Facing the front, I'm looking at the left hand engines.
Right?‑‑‑And it was the one at the far end.
Okay. Now when that happened did you raise the alarm?‑‑‑No. In - in an emergency like that we wait and - wait for directions from the captain.
Yes?‑‑‑But the aircraft was about to take off, was in - moving and then it came to a stop.
Yes?‑‑‑Because there had been a loud bang.
Yes?‑‑‑And my - I could see what caused the bang.
Right?‑‑‑But there was a long time between the captain saying something to the crew about evacuating the aircraft or not.
And was the aircraft evacuated?‑‑‑No.
And did the aircraft then take off as normal?‑‑‑No. It was - taxied back to air movements and the passengers disembarked.
Right?‑‑‑And we disembarked and went for a debrief.
Okay. By the time you got back had the fire gone out in the engine?‑‑‑How do you mean?
Well, you saw a fireball, did that persist for any length of time?‑‑‑In my mind, yes it did. It was a fair long - a long time that there was fire there before a fire engine turned up. But the fireys eventually did turn up and from my understanding of the situation, it was that flight that the fireman realised that whenever this incident happens with the 707, they can't communicate with the captain because of the noise. If the captain doesn't pull the engines back from full throttle, then you can't hear anything or speak to anybody because of the level of noise outside the aircraft.
All right. Okay. Now - - -?‑‑‑And that - can I just add something there? To my knowledge, the flight crew at the time were of the understanding that the bang was a flight tyre. They were looking at a flat tyre not an engine. And the firemen couldn't do anything until the engines were turned off. I understand that the engine was changed, and we flew out in that afternoon.
Right. But apparently the ‑ ‑ ‑?‑‑‑On the same aeroplane.
Yes, yes. Apparently the maintenance records don't indicate much - a fire in the engine, at least?‑‑‑Well, I don't believe the records show the 500, the records of the 500. The sheet is the 500 which is the maintenance of an aircraft.
Right?‑‑‑So they had an engine change due to a fire, that's where it would appear. The records that Canberra have of what the pilots have reported, doesn't indicate a fire.
Right?‑‑‑From my understanding of the report.
Yes, I think - was it, yes - Commodore Brennan said something to the effect that unit history sheets, no records are found in unit history sheets because that sort of thing wasn't recorded, so the directorate of flying safety said something of that nature would have been a reportable aircraft engine - reportable aircraft incident and they showed - they looked from 1983 to '84, there were 39 incidents reported in relation to the 707s, two involved engines and none involved engine fire at that time but again, you can't be sure - you can't really recall when precisely this was during the period of service?‑‑‑No.” (Transcript, p 46-47)
18. The totality of the evidence did not allow a clear cut answer to the question of whether such a fire in the engine of a Boeing 707 occurred at around the time indicated by the applicant which was around 1983 to 1984. The Tribunal notes that the incident took place a very long time ago, and the applicant had subsequently been through many harrowing experiences and therefore he may not in fact remember exact details. The Writeway report noted:
“Is there any other relevant information, which would be of assistance to the Board?
From Mr Robertson’s description of the incident, it is possible that the incident he experienced was a compressor stall in the outboard port engine. A compressor stall is a transitory event and is not uncommon in the operation of jet engines. It is triggered by a perturbation in airflow through the engine and, for aircraft on the ground, is often associated with throttle movement. Because of the interruption of the airflow, it is possible for the engine to be oversupplied with fuel, ie, more fuel than the instantaneous airflow through the engine can accommodate for efficient burning. The over-supply of fuel can result in the fireball effect described by Mr Robertson and a noise would be consistent with Mr Robertson’s observation that the pilot at first thought he had blown a tyre.” (T18, p 282)
19. The Tribunal accepted that the applicant truly believed that he had witnessed a fire in an engine, and his understanding was that appropriate measures were not taken during that incident. The Tribunal also accepts that the applicant developed an apprehension or anxiety about flying from that point onwards.
20. The applicant gave evidence that he married in 1982 while he was in Richmond. He then went to Darwin with his wife and children. The first time he sought help from a doctor was in 1989, for sleeping and appetite problems which he had had for some time. Mr Ponnuthurai indicated that the applicant was also complaining of other things like stress at work. He was asked what it was that was causing him stress at work at that stage. He answered: “having to go to the client”. His evidence continued:
“Right. So it was the thought of having to go back flying?‑‑‑Mm.
Now, what was it that you didn't like about going back flying?‑‑‑It was dangerous.
Right?‑‑‑And that's - what I'm saying is - the aircraft's not dangerous, it was the way that - for me, the way that things were being handled by the pilots and the people in control of the 707, because it came to fruition that in 1991, after a touch and go at Sale, the aircraft plummeted into the ocean, and they lost the aircraft and the crew.
And that was one of the 707s?‑‑‑It was the 707.
DR WEERASOORIYA: And which year was that, sorry?‑‑‑'91.
'91, and that is established, that there was such a ‑ ‑ ‑?‑‑‑That's - yes. And it wasn't aircraft - it wasn't the aircraft that was the problem, it was the way that they were handling the aircraft, the crew were handling the aircraft.
Mr Ponnuthurai, that can be accepted?
MR PONNUTHURAI: Well, we can verify that. I'm pretty sure that there was a - a plane lost during that period, but I can't be precise about it.
DR WEERASOORIYA: Yes, okay. So for now, we will say that it's a possibility.
MR PONNUTHURAI: Yes?‑‑‑It was roughly two years later. From 1989 - '89 to '91. I was in Wagga at the time.
DR WEERASOORIYA: Yes.
MR PONNUTHURAI: But you at this stage weren't involved in it, you weren't flying at all?‑‑‑No, no. But in the back of your mind, you think, well, they're going to attach you again, you know, they may attach me again to flying.” (Transcript p 49-50)
21. The Writeway report dated 12 July 2006 confirmed that “attachments”, which were different to “postings”, could be made for shorter spells. The report notes the following (at page 9):
“Also on his personnel file is a message dated 28 August 1989 attaching Mr Robertson from Base Squadron Darwin to 33 Squadron from 30 August to 22 September 1989 for “FSTWD (Flight Steward) SECONDMENT CIVIL AIR DISPUTE”. A message dated 29 August 1989 cancels this attachment for Mr Robertson but no reason for the cancellation is provided.”
22. The applicant was involved in the management of the technology section of the air force after 1990.
“MR PONNUTHURAI: Now, '89, once this crisis in your life had ended, it would appear you sort of got back to normal. You wound up in Wagga and places like that?‑‑‑Mm.
Before coming back to Pearce. During that period, we also note that by 1998, you were getting really excellent personnel reports?‑‑‑I got promoted to Sergeant.
Yes. So you were coping and performing well. So what changed in the late '90s that wound up with you winding up in hospital and then eventually being discharged?‑‑‑That's - you're talking about Sir Charles Gairdner Hospital?
Yes?‑‑‑If you go to the Sir Charles Gairdner Hospital discharge summary, it again says that I had work related stressors. And the work related stressors were from working at - recruiting here in Perth.
And what was the problem with working at recruiting?‑‑‑I was becoming anxious if you like at the situation that I had been placed in through the posting. And I was doing things - we were involved in the recruiting side of things that I hadn't actually been trained to do. So, I was trying to say to my superior that I am having difficulty coping with this position.” (Transcript, p 51)
23. The Tribunal notes that it appears the applicant’s anxiety was due to his superior not understanding that he had applied to be a career advisor (for which role he was trained) rather than a processor (for which role he had not received training), and the fact that he did not feel he was getting the necessary support from his section commander.
24. Mr Ponnuthurai asked the applicant whether he agreed that by the end of 1998/99, “whatever condition you had was in remission, and that you were effectively psychologically and psychiatrically normal”. The applicant answered: “Yeah, it wasn’t bipolar”. In the Tribunal’s opinion, the applicant was not capable of answering that particular question, which was for a psychiatrist to answer. Mr Ponnuthurai then asked the applicant about the situation in 2003 when he went to see Dr Chieu for the first time, who thought at that stage that he had an anxiety disorder. The documents show that this is not strictly correct. Dr Chieu saw the applicant between March 2002 and July 2003 (T10, p 210).
“MR PONNUTHURAI: Had your condition become worse during that period?‑‑‑Yes. What triggered it was following the escalation of terrorism, if you like, the two aircraft going into the building, from the October until I saw Dr Chiu I had been to Dr Noh who is my doctor and I asked for a referral to see Dr Terace because the same feelings I had were coming again. Lack of sleep, appetite. And it was due to that problem in America and the stories of those planes - you know, seeing those planes go into the building.” (Transcript, p 56)
It is clear that until the applicant saw Dr Chieu he was supported psychologically by his general practitioner, Dr Ngo.
The relevant medical evidence
25. The Tribunal considered all the relevant medical and related evidence in the material before it. That evidence can be summarised in date order as follows:
- laboratory request for rectal swab for intestinal amoebiasis, dated 3 August 1981;
- specialist consultation record dated 28 June 1983, which states “No further bleeding since last seen - still worried as to cause of original episode. For Barium enema” (T13, p 241);
- copy of Los Angeles Times article regarding Sadat’s assassination, dated 3 July 1981 (T13, p 238);
- copy of Hindustan Times article entitled “Indira Gandhi shot dead”, dated 1 November 1984 (T13, p 237);
- referral from Lisa Dowling to Dr Isherwood-Hicks, psychologist, dated 7 November 1989 (T3, p 23), which reads in part:
“Dear Jan, Thank you for seeing CPL Ian Robertson who is having marital problems and appears to be under a great deal of stress. During the recent exercise (K89) his wife Joanne left him in August 89 and went away with one of his former friends, a chef working at the officer’s mess. His wife left for Adelaide with his friend who was attached to Adelaide leaving their two young children in Ian’s care. Until recently he seemed to be coping alright although he was counselled for long periods by both the SMO and myself, on at least three occasions. His wife recently returned for two weeks to” see the children”, but has since returned back to Adelaide”.
- letter of referral of applicant from Dr Huilgol to Dr Brennan Psychiatrist, dated 21 December 1989, which reads:
“Dear Dr Brennan,
Thank you for accepting this fellow with acute situational crisis. He has had profound difficulty coping with marital separation which occurred in August and this is his third/fourth presentation to me, acutely distressed, not coping not sleeping etc. This occasion he has voiced homicidal thoughts to Darwin welfare officer Loretto, re his wife Joanne. I believe he has a significant depression which requires drug treatment. He has been having ongoing counselling, support etc for four months now to no avail; as well as these acute de-compensations, one of which has occurred again. I believe he is actually more of a risk to himself than anyone else.. Physical examination – pulse 64 regular, respiratory rate 20, temperature 36.7 blood pressure 135/80 emotionally distressed.”
- discharge report presentation, dated 29 December 1989, which reads in part:
“Presentation: 20/12/89
Status: Voluntary
Discharge 29/12/89
Status: Voluntary
Diagnosis: Axis 1. Adjustment disorder with mixed emotional features...
Axis 2: Obsessive compulsive personality disorder...
Axis 3: Nil
...
Mental state on examination:
Ian was neatly and cleanly dressed in casual clothes. He was co-operative with interview, giving detailed and precise answers to questions. He appeared somewhat anxious, and became tearful when talking about his children, although he would make a major effort to regain control of his emotion. Partly it would seem by careful attention to minute details of his story. There were no abnormalities of perception, or cognition. There was no evidence of thought disorder.Management and progress.
Mr Robertson was encouraged to ventilate his feelings regarding his family and work related stresses. It became apparent that he has strong obsessional personality traits, as well as some narcissistic and paranoid traits. As his stress on admission was largely related to his feelings of loss of control, which he was unable to tolerate. During his admission his sleep and appetite improved, and he was able to make plans to deal with his family and work related stresses. He had planned a meeting with his wife. He was strongly advised not to drink any alcohol before meeting his wife. He agreed to seek medical assistance if his level of anxiety again increased thereby, putting him at risk of loss of control and acting in response to his rage.”
- upper GI endoscopy report of Dr Branston, Gastroenterologist, dated 7 October 1999, which states: “Probable stress related dys-motility” (T4, p 187);
- colonoscopy report of Dr Branston, dated 7 October 1999, which states: “Unexplained diarrhoea, but inadequate colonoscopy” (T13, p 239);
- report of Dr Chieu, psychiatrist, dated 5 October 2002, which states: “Diagnosis – Generalised anxiety and Post traumatic stress disorder” (T4, pp 198-9);
- full psychiatric report from Dr Chieu, dated 29 August 2003 (T10, pp 210-216).
26. Dr Chieu saw the applicant on 5 occasions between March 2002 and July 2003. He made a detailed and comprehensive report after considering the reports of psychiatrists Dr Terace and Dr McCarthy, the discharge summary from Graylands Hospital and the report of Dr Sallie, Gastroenterologist. Dr Chieu expressed his opinion thus:
“I am now satisfied that from a Clinician’s point of view, his primary psychiatric diagnosis responsible for his disability is generalised anxiety disorder (GAD) arising from incidents during his military service(vide infra), and his perception of the risks involved in AIR force Boeing 707’S.” (Original emphasis)
On page 2 of his report at T10 page 211 paragraph 4 Dr Chieu notes:
“There had been controversy regarding his diagnosis. A number of diagnoses had been entertained in the past, including bipolar affective disorder, acute stress reaction, adjustment disorder, obsessive compulsive personality disorder, and anxiety disorder.”
Later on in his report he noted:
“I doubt the validity of the diagnosis of bipolar as a disorder (BAD) from the descriptions (in quite some detail) at hand, and from my own observations. Even if he did or does suffer from bipolar affective disorder, the BAD is episodic and concurrent to his GAD. BAD does not account for his continuing disability.” (Tribunal’s emphasis)
Dr Chieu went on to describe why he did not favour the diagnosis of Bipolar Disorder (BAD) as follows:
“Bipolar Affective Disorder (manic phase):
Mr Robertson’s diagnosis was raised when he was admitted to Sir Charles Gairdner Hospital in 1999. The mental state examination detail by the hospital summary while reflective of someone highly agitated and anxious was not entirely consistent with mania, e.g. “he was self effacing, his speech was normal in rate and rhythm”.
There was a comment that he expressed well structured paranoid ideas (held with delusional intensity, but not bizarre in nature). Mr Robertson’s ideation of “They are all against me” can, however, be understood firstly in his encounters prior to his admission, when in his agitation, he could not make himself understood, and hence became more agitated; and secondly his prior experience when action apparently was taken against him (at least partially) based on false allegations made against him by his wife. (His wife alleged that he had sexually assaulted his daughter. Her allegations were not made known to him for some time. His wife was subsequently found to suffer from a serious psychiatric disorder).
For quite some time, these allegations were not made known to him while he became aware that some people around him were holding something seriously against him. Reality based awareness is not paranoia in diagnostic terms.” (Tribunal’s emphasis)
In other words, Mr Robertson’s presentation at that time could be consistent with situational reaction, or brief reactive psychosis, with the background of GAD.
I did not elicit a subsequent clinical course consistent with ongoing bipolar affective disorder.
My own observation over time does not support the diagnosis of ongoing BAD”.
...However, even if the diagnosis of psychosis is valid the episodes were short lived while his GAD symptomatology has been chronic and pervasive. (Tribunal’s emphasis)
With regard to prognosis, Dr Chieu noted:
“While Mr Robertson is likely to benefit from psychiatric intervention, in terms of symptomatic management, I am of the opinion that given the chronicity of the illness, and his vulnerability to stress, he will not be able to return to gainful employment full time or part time, for the rest of his natural life”.
With regard to irritable bowel syndrome, he noted:
“Mr Robertson gave a history consistent with irritable bowel syndrome. His GAD is a significant contributing aetiological factor to his irritable bowel syndrome”.
Analysis
27. The first time the applicant saw a psychiatrist for any psychiatric condition that would have had a relationship to IBS was when he saw Dr Chieu over 5 occasions in 2002/2003. (He had seen a psychiatrist, Dr Brennan, in Darwin in 1989 but this was for a condition labelled a situational crisis- that had no relationship to IBS).
28. Dr Chieu’s report, outlined in some detail above – indicates that the applicant’s GAD had its clinical onset in October 1981 after a series of stressors originating from his flight to Cairo taking H E the Governor General to Mr Sadat’s funeral.
29. The Tribunal then looked at the evidence for stressors that Dr Chieu elicited from the applicant in order to come to his diagnosis.
30. The first stressor was the flight with H E the Governor General to Cairo for Mr Sadat’s funeral a day after his assassination on 7 October 1981. This was the first stressor noted by Dr Chieu. The Tribunal notes that all VIP flights were officially labelled “Flight under threat of Terrorism” (T4, p 196). The flight into Cairo occurred at a time when the situation was very tense and the country was under martial law. the applicant did not go into Cairo – he remained in a hotel near the airport. He heard later that the airport was bombed the day after they left Cairo.
31. The Tribunal is reasonably satisfied that the applicant would have been quite anxious during the period that he flew in and out of Cairo, triggering the onset of his anxiety about flying.
32. The next stressor identified by Dr Chieu was in 1984 when the applicant thought “a fireball from an engine engulfed a section of the wing”. The Tribunal finds that:
·the episode happened some 18 years before the applicant saw Dr Chieu in 2002 and 2003;
·the applicant had been through quite a harrowing time due to non-service related personal problems, including the breakdown of 2 marriages, and the possibility of being medically discharged from the RAAF;
·the applicant was said to suffer from a psychiatric condition variously labelled by qualified psychiatrists as either an acute psychosis triggered by a situational crisis or bipolar disorder.
The Tribunal further finds that none of these psychiatric conditions satisfied the requirement of a “specified psychiatric condition”, as required by the SoP.
33. The ‘fireball incident’, as described to the VRB, appeared to have been embellished by the applicant, and prompted both the VRB and the Tribunal to seek clarification that such an episode occurred, as it appeared to be a significant event that ought to have been recorded somewhere. Considering the applicant was trying to recollect details of an incident that occurred 20 years ago, which had been overwhelmed by his highly emotionally charged domestic problems, the Tribunal is reasonably satisfied that, based on the material and the evidence, any embellishment the applicant appears to have made was not deliberate or deceitful.
34. The Writeway researcher’s report of 15 July 2004 notes:
“From Mr Robertson’s description of the incident, it is possible that the incident he experienced was a compressor stall in the outboard port engine. A compressor stall is not uncommon in the operation of jet engines. It is triggered by a perturbation in the airflow through the engine and, for aircraft on the ground, is often associated with throttle movement. Because of the interruption in airflow, it is possible for the engine to be over-supplied with fuel, ie more fuel than the instantaneous airflow through the engine can accommodate for efficient burning. The oversupply of fuel can result in the fireball effect described by Mr Robertson and a noise that would be consistent with Mr Robertson’s observation that the pilot at first thought he had blown a tyre...”
With regard to this episode the Tribunal is reasonably satisfied that the applicant truly believed that he had seen a fire in an engine, and that his understanding was that appropriate measures were not taken during that incident. The Tribunal finds that the applicant developed a further apprehension or anxiety about flying after this episode.
35. The third incident (recorded by Dr Chieu), was in 1988, when the applicant was on a flight with Her Majesty the Queen on board. He said that he was very concerned because he had realised that there had been a breach of confidentiality regarding the flights and destinations of the Queen to unauthorised personnel.
36. Considering the applicant’s mental state by this time, the Tribunal is reasonably satisfied that after the first and second incidents, he already had reason to be anxious about this flight as well. There was no corroborating evidence of this alleged breach of confidentiality.
37. Having been reasonably satisfied that the information on which Dr Chieu relied to come to his diagnosis of GAD could not be considered to be totally false, and taking into consideration all the other factors as previously mentioned, and noting that all these stressors were directly related to the applicant’s service, the Tribunal is reasonably satisfied that Dr Chieu’s diagnosis of GAD was correct and based on the honestly held perceptions of the situation by the applicant.
38. The Tribunal then had to consider the following questions:
·Does the applicant suffer from a psychiatric condition?
·If so, what is the appropriate diagnosis of that psychiatric condition?
·Is the applicant’s condition causally related to his service?
39. The Tribunal finds that the applicant suffered from the psychiatric condition of GAD, the clinical onset of which was in 1981.
40. In order to answer the other two questions, the Tribunal considered the SoPs for GAD and IBS.
The Statements of Principles
41. The SoP for GAD is Instrument 2 of 2000. The factor in that SoP that must be satisfied to connect the circumstances of the applicant’s service with the psychiatric condition of GAD is factor 5(a)(i):
“experiencing a severe psychosocial stressor within one year immediately before the clinical onset of anxiety disorder.”
42. Based on the applicant’s evidence and Dr Chieu’s report, the Tribunal is reasonably satisfied that the applicant experienced a severe psychosocial stressor – defined in the SoP as an identifiable occurrence that evokes feelings of substantial distress in an individual – in the course of his defence service within 1 year immediately before the clinical onset of his GAD. The Tribunal finds that the circumstances of his flight into and out of Cairo when H H the Governor General was flown to Mr Sadat’s funeral in Cairo, satisfied this definition.
43. The Tribunal finds, therefore, that the applicant’s GAD is a defence-caused disease.
44. The SoP for IBS is Instrument 104 of 1996.
45. The factor in the SoP that must be satisfied in order to connect the disease of IBS with the defence service is factor 5(a), which requires that the applicant must suffer a specified psychiatric condition within 6 months immediately before the clinical onset of IBS.
46. Based on the applicant’s evidence and the findings of gastroenterologists who saw him later in 1999 (see T7 pp 203-206), the Tribunal is reasonably satisfied that the characteristic symptomatology of IBS outlined in the SoP occurred within the six month period following the onset of GAD in 1981 and continued thereafter.
47. The Tribunal finds, therefore, that the applicant satisfies the requirements of the SoPs for both GAD and IBS and that both conditions are defence-caused.
Decision
48. Based on these findings, the Tribunal sets aside the decision under review and substitutes the decision that the applicant’s conditions of irritable bowel syndrome and generalised anxiety disorder are defence-caused, with effect from 28 July 2002. The Tribunal remits the matter to the respondent for assessment of the rate of pension.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D Weerasooriya, Member
Signed: …….…(Sgd. S da Motta) ………...............
AssociateDate of Hearing 16 May 2006
Date of Decision 15 December 2006
Representative for the Applicant Self representedRepresentative for the Respondent Mr C Ponnuthurai
Department of Veterans’ Affairs
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