Robertson and Repatriation Commission
[2004] AATA 866
•19 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 866
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/885
VETERANS' APPEALS DIVISION ) Re RAYMOND MALCOLM ROBERTSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms M J Carstairs, Member Date19 August 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...................[Sgd]......................
M J Carstairs
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – tinnitus – claim for depressive disorder - chronic pain
Veterans' Entitlements Act 1986 ss 5AB(2), 9, 120, 120A, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581
REASONS FOR DECISION
19 August 2004 Ms M J Carstairs, Member 1. This is an application by Raymond Malcolm Robertson (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 18 March 2003. The VRB affirmed the decision of a delegate of the Repatriation Commission (the respondent) dated 24 October 2001 that certain conditions suffered by the applicant were not war-caused.
2. At the hearing the applicant was represented by Ms B Carter Nicoll, instructed by Sciacca’s Solicitors. Mr B Williams of the Department of Veterans’ Affairs represented the respondent.
3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T6), together with exhibits marked A1-A3 for the applicant and R1 for the respondent.
BACKGROUND
4. The applicant was born on 14 September 1937. He served in the Royal Australian Navy from 20 April 1966 to 19 April 1968 and from 31 July 1968 to 3 December 1993. The applicant served in the Far Eastern Strategic Reserve on four occasions: 7-20 April 1960, 6-20 May 1960 and 6-16 June 1960 and 28 February-16 March 1962. These periods are operational service under the Veterans' Entitlements Act 1986 (the Act).
5. On 4 June 2001, the applicant applied to have the following medical conditions accepted as war-caused: actinic keratosis, non-melanotic malignant neoplasm of the skin, gastro-oesophageal reflux disease, irritable bowel syndrome and depressive disorder. All claims were refused by the respondent’s delegate. The applicant sought review by the VRB of the decision to reject his claim for depressive disorder. The applicant’s accepted service-related conditions are: bilateral sensorineural hearing loss, bilateral tinnitus and infection, and inflammatory reaction due to tinnitus masker.
6. On 21 October 2003, the applicant lodged an application with the Tribunal for review of the decision of the VRB rejecting the claim for depressive disorder. The issue before the Tribunal is whether the applicant’s depressive disorder is war- caused within the meaning of the Act, and particularly whether the applicant suffers ‘chronic pain’ as a result of his accepted condition of tinnitus so that he comes within a Statement of Principle (SoP) that allows for suffering chronic pain….at the time of the clinical onset of depressive disorder, where this is related to service.
EVIDENCE
7. In a written statement dated 5 March 2004 (exhibit A1), the applicant said that he believes that his depression is caused by constant tinnitus, which makes him irritable and affects his social relationships and self-esteem. He told the Tribunal that his tinnitus has been present for ten years, and causes incessant noise and high-pitched ringing in his ears.
8. In oral evidence the applicant explained that his tinnitus disrupts his sleep, and he is able to sleep only four hours at a time. He said that the lack of sleep causes headaches 2 or 3 times each week, although these feel more like a thick head than the pain of a splitting headache. The applicant stated that on one occasion he was admitted to hospital after threatening suicide. He said that he takes Cipramil medication and would like to undertake any program that would assist him to manage the tinnitus.
9. In an undated report, Dr I Wilson, consultant psychiatrist, said that he interviewed the applicant on 31 July 2001. He stated that the applicant was suffering from depressive disorder with obsessive compulsive features, marked by anxiety and tension with a low tolerance of frustration. He recommended treatment including Cipramil but said that there was likely to be little change in the applicant’s basic personality style including obsessional tendency to low frustration tolerance.
10. In a report dated 18 September 2002 (T4), Dr D Jobbins, ear nose and throat specialist, wrote to the applicant’s general practitioner stating that the applicant had suffered a nervous breakdown as a result of his tinnitus. He stated that tinnitus merges into psychiatric problems. The applicant was admitted to Gladstone Hospital on 29 August 2002 with severe tinnitus, depression and suicidal thoughts. Dr Jobbins wrote to the respondent’s delegate on 1 November 1999, requesting approval for the applicant to attend a Tinnitus Management Clinic (exhibit R3). The applicant’s general practitioner, Dr N Fraser, wrote similarly, in a letter dated 29 October 2001 (exhibit R5). In a letter dated 14 November 2001, Mr D Pozet, Health Care Access Officer, Department of Veterans’ Affairs refused the request, stating that the Department does not meet the cost of Tinnitus Management Programs.
11. In a report dated 25 October 2002 (T4, folio 57), Dr J Flanagan, psychiatrist, diagnosed chronic major depressive disorder, due to a general medical condition (chronic tinnitus) that had been present for 2-3 years. He stated that the prognosis was poor because of continuing tinnitus, although he believed the applicant may benefit from psychological treatment which would assist in adjusting to the tinnitus.
12. In a report dated 5 March 2004 (exhibit A3), Dr Flanagan stated that his previous diagnosis was not strictly correct. He said:
While tinnitus may in fact also predispose to mood disorder through neurophysiological mechanisms, the main causal connection is psychogenic ie the depression is caused by the distress and disability resulting from the tinnitus.
Dr Flanagan noted that for some people and in some cases tinnitus is an extremely distressing condition that can lead to suicide. He said tinnitus is associated both with depressed mood and major depression. Dr Flanagan concluded that the applicant’s depression is very clearly due to severe and unprotected noise exposure, in the course of his Naval duties.
13. In oral evidence Dr Flanagan stated that tinnitus is an experience that has physical and emotional aspects, so that a person feels more or less hopeless or helpless, and becomes preoccupied and suffers more. He told the Tribunal that he took no specific note of the applicant suffering headaches but the symptoms described from the applicant’s evidence led him to speculate that headaches would result from psychological tension leading to muscle tension. The applicant had told Dr Flanagan that he often wakes with a clenched jaw. Dr Flanagan stated that tinnitus management programs are used in chronic cases and represent a cognitive behavioural approach for which there is some evidence of success.
CONSIDERATION OF THE ISSUES
14. Section 9(1) of the Act provides:
Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…
15. The process of deciding whether the material before the Tribunal connects a disease, injury or death to war service, where s 120 and s 120A of the Act apply, was laid down by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four‑step process:
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 [Statement of Principles] 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 an 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.
16. There was no dispute that the applicant suffers from depressive disorder and the Tribunal was satisfied that the diagnosis is correct. The SoP raised in this case was that for depressive disorder (Nº 58 of 1998). The relevant factor within paragraph 5 of SoP Nº 58 of 1998 that must be related to service is:
(e)suffering from chronic pain of at least six months duration at the time of the clinical onset of depressive disorder
In paragraph 8 of the SoP, “chronic pain” is defined as meaning
continuous or almost continuous pain, which may or may not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities or activities of daily living.
17. Ms Carter-Nicoll submitted that the applicant suffers from a depressive disorder due to a general medical condition of tinnitus, which is an accepted condition. She said that the tinnitus causes pain which is constant and was evident over six months prior to the depressive disorder. She said that the chronic nature of the pain was confirmed by the evidence from Dr Flanagan.
18. Ms Carter-Nicoll referred to the applicant’s evidence that he experiences tinnitus as incessant noise and ringing in the ears, and that it is strong and high-pitched. She stated that the tinnitus causes sleep disruption and the constant pain is a consequence of the tinnitus. Ms Carter-Nicoll said that she did not rely on the experience of headaches as ‘pain’ but on Dr Flanagan’s evidence that tinnitus is a high-pitched, annoying, hallucinogenic experience.
19. Mr Williams referred to the evidence from the applicant that his headaches were in the nature of a thick head due to sleeping problems, rather than pain from splitting headaches. He said that Dr Flanagan’s evidence about the distress and disability caused by tinnitus demonstrated that noise exposure, rather than ongoing pain, was the major factor in the applicant’s depression. Mr Williams submitted that there was no credible evidence that the applicant suffered from chronic pain as defined in paragraph 8 of the SoP that would satisfy factor 5(e).
20. The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at the hearing.
21. The third step in Deledio requires that an opinion be formed as to whether the hypothesis advanced by the applicant is reasonable. That is, whether there is material supporting or pointing to the hypothesis connecting the applicant’s condition of depressive disorder with the circumstances of the service rendered by him. If the hypothesis is consistent with the template in the relevant SoP, then it will be reasonable.
22. In Repatriation Commission v Hill (2002) 69 ALD 581, the Full Federal Court stated, at 596:
If an essential element of a hypothesis is not raised (or pointed to) by the material before the decision-maker, then the hypothesis is not raised by that material: cf East at FCR 533…
23. The Tribunal accepts the evidence from the applicant that he experiences incessant noise and ringing in his ears from his tinnitus, which disturbs his sleep and results in him waking with a feeling of a thick head several times each week, as well as affecting his social relationships and his self-esteem. The applicant did not say that he experiences tinnitus as ‘painful’, though his evidence was that he is never without the annoying and distressing experience of high-pitched noise and ringing. The Tribunal also accepts Dr Flanagan’s evidence that tinnitus has both physical and emotional aspects that lead to frustration and preoccupation with the effects of the condition.
24. ‘Pain’ is a word that is capable of bearing several meanings in ordinary usage. However the usage in the SoP is the medical usage. The SoPs are formulated by the Repatriation Medical Authority under s196B of the Act, on the basis of sound medical-scientific evidence, a term which is defined in s5B(2) of the Act. That the word is being used in its medical sense is lent support by the word ‘pain’ appearing with the word ‘chronic’. These words must be read together. ‘Chronic pain’ also is a medical term, used in distinction from ‘acute pain’. There is no question that what the applicant experiences is chronic, however there was no real evidence that what the applicant experiences is ‘pain’ within the medical sense of the term. ‘Pain’ is defined in Butterworth’s Medical Dictionary (2nd Ed) as:
The distressing sensation excited by noxious stimuli of sufficient intensity acting on nerve endings in the skin, viscera, muscles, bones, joints etc. The pain sensation has different qualities according to the tissue affected and the producing agent. It is variously described as cutting, stabbing, burning, throbbing, gripping, stabbing, shooting, spasmodic…
25. The applicant’s evidence pointed to his experiencing severe, irritating symptoms as a result of tinnitus. Dr Flanagan’s evidence went no further than to say that the applicant’s experience was ‘similar’ to chronic pain, in that it was unpleasant and, like pain, has both physical and emotional aspects. He did not say that the applicant suffered pain. The Tribunal accepts the submission of Mr Williams that this evidence, which appears to be supported by the other medical evidence, shows that the applicant does not suffer from continuous or almost continuous pain from tinnitus, so he does not satisfy the definition of ‘chronic pain’ as specified in paragraph 8 of the SoP for depressive disorder.
26. Therefore the evidence does not point to the applicant suffering from chronic pain of at least six months duration at the time of the clinical onset of depressive disorder required by factor 5(e) of SoP N° 58 of 1998 or any other factors in the SoP. Therefore the hypothesis is not consistent with the template and is deemed not to be a reasonable hypothesis, and the claim must fail.
DECISION
27. The Tribunal affirms the decision under review.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member
Signed: Sarah Oliver
AssociateDate of Hearing 16 July 2004
Date of Decision 19 August 2004
Counsel for the Applicant Ms Carter-Nicoll
Solicitor for the Applicant Sciaccas Lawyers
For the Respondent Mr B Williams, Departmental Advocate
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