Robinson and Repatriation Commission
[2002] AATA 894
•4 October 2002
DECISION AND REASONS FOR DECISION [2002] AATA 894
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1396
VETERANS' APPEALS DIVISION )
Re GEOFFREY VALENTINE ROBINSON
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr M J Sassella, Senior Member
Date4 October 2002
PlaceSydney
Decision The tribunal affirms the decisions under review.
[SGD] M J SASSELLA
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension – post-traumatic stress disorder – generalised anxiety disorder – panic disorder – depressive disorder – alcohol dependence or abuse – whether veteran experienced a severe stressor or a severe psychosocial stressor – decisions affirmed
Safety, Rehabilitation and Compensation Act 1986 ss 20(1), 23(1)(a)(i), 24(1)(a)(i), 120(1), (3), (4). 196D
Statement of Principles 3/99 as amended by 54/99 concerning post-traumatic stress disorder
Statement of Principles 15/94 as amended by 225/95 concerning post-traumatic stress disorder
Statement of Principles 76/98 concerning alcohol dependence or alcohol abuse
Statement of Principles 5/94 concerning psychoactive substance abuse or dependence
Statement of Principles 1/2000 concerning anxiety disorder
Statement of Principles 48/94 concerning generalised anxiety disorder
Statement of Principles 9/99 as amended by 58/99 concerning panic disorder
Statement of Principles 31/98 concerning panic disorder
Statement of Principles 58/98 concerning depressive disorder
Statement of Principles 65/96 concerning depressive disorder
Budworth v Repatriation Commission (2001) 33 AAR 48
Chaplin and Repatriation Commission, Re [2000] AATA 688
Deledio, Repatriation Commission v (1998) 49 ALD 193
Dettmer and Repatriation Commission, Re [2001] AATA 320
Gorton, Repatriation Commission v (2001) 33 AAR 370
Hamilton and Repatriation Commission, Re [2000] AATA 299
Hunter and Repatriation Commission, Re [2002] AATA 485
Kelly and Repatriation Commission, Re [2001] AATA 254
Smith, Repatriation Commission v (1987) 74 ALR 537
Williams, Repatriation Commission v [2001] FCA 1195
REASONS FOR DECISION
4 October 2002 Mr M J Sassella, Senior Member
THE APPLICATION
This is an application to the Administrative Appeals Tribunal ("the tribunal") by Geoffrey Valentine Robinson ("the applicant"), born 7 August 1940 (T4), for review of a decision of the Veterans' Review Board ("the VRB") dated 28 July 1999 (T17) which affirmed a decision of the Repatriation Commission ("the respondent") dated 22 August 1998 (ex TD3/21) to refuse a claim for Disability Pension in respect of post-traumatic stress disorder, psychoactive substance abuse, panic disorder and depressive disorder and which set aside a decision of the respondent dated 3 January 1997 (T10) setting the pension rate at 20% of the general rate. The VRB set aside the respondent's decision and decided instead that the pension was payable at 40% of the general rate.
THE HEARINGThe tribunal convened a hearing in this matter in Sydney on 13 February 2001. Mr N Dawson of counsel represented Mr Robinson. Mr S Modder of the Department of Veterans' Affairs ("DVA") Advocacy Service represented the Repatriation Commission. The tribunal heard oral evidence from Mr Robinson and Dr A Dinnen, a psychiatrist. The tribunal took into evidence the following documents:
Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T21) provided by the respondent.
Exhibit TD2 – Additional service documents provided by the respondent.
Exhibit TD3 – DVA documents relating to primary decision.
Exhibit A1 – Applicant's statement, 22 February 2000.
Exhibit A2 – Report by Dr A Dinnen, psychiatrist, 19 May 2000.
Exhibit A3 – Report by Dr M Baz, occupational physician, 29 August 2000.
Exhibit A4 – Applicant's amended statement of facts and contentions, 10 October 2000.
Exhibit R1 – Report by Dr N J Schultz, psychiatrist, 12 April 2000.
Exhibit R2 – Report by Dr R McEwin, physician and rehabilitationist, 13 June 2000.
Exhibit R3 – Report by Dr McEwin, 28 October 2000.
Exhibit R4 – Clinical notes of Dr K Whyte.
Exhibit R5 – Respondent's statement of facts and contentions, 13 February 2001.
This matter was adjourned on 13 February 2001 to await the outcome of the decision of the Federal Court in Budworth v Repatriation Commission (2001) 33 AAR 48. The hearing resumed on 24 April 2002.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGSThe tribunal makes the following uncontroversial findings.
The applicant was born on 7 August 1940 and was aged 57 when he lodged his claim.
The applicant served in the Royal Australian Air Force ("RAAF") from 20 February 1961 to 19 February 1970 and from 7 July 1971 to 26 July 1982 and rendered operational service from 27 September 1962 to 11 January 1963, from 11 August 1967 to 20 November 1969 and from 27 August 1974 to 25 August 1976 (T3/6-7).
The applicant lodged a valid claim on 10 February 1998 (ex TD3/1).
The date of effect of any decision favourable to the applicant in relation to acceptance of a new condition as war-caused 10 November 1997 (s 20(1) of the Veterans' Entitlements Act 1986 ("the Act")). The date in relation to assessment for conditions already accepted would be 31 July 1996, the date of effect of a decision to pay at 20% of the general rate (T10).
The standard of proof in relation to whether any additional condition is a war-caused disease is the reasonable hypothesis standard (s 120(1), (3) of the Act). The standard in relation to assessment and diagnosis is that of reasonable satisfaction (s 120(4) of the Act). This standard equates to acceptance on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537, 547).
The full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an applicant will succeed in a claim that a disability was war-caused. The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206.
The first step is to consider whether the material before the tribunal points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the applicant. In general terms the hypothesis here was that during operational service in Ubon the applicant was in danger from hostile enemy forces and was subjected to stressful situations (ex A1). This caused his array of psychiatric conditions.
The second step is to ascertain whether there is a relevant binding Statement of Principles ("SoP") issued by the Repatriation Medical Authority under s 196D of the Act in force. There are in force a range of SoPs related to Mr Robinson's claim. For post-traumatic stress disorder the SoPs are 3/99 and 54/99. For alcohol abuse or dependence the SoP is 76/98. For anxiety disorder the SoP is 1/2000. For depressive disorder the SoP is 58/98. For panic disorder the SoP id 9/99 as amended by 58/99. These SoPs relevant to the determination of this matter are, prima facie, the SoPs currently in force. If the hypothesis fails in relation to a current SoP then a SoP in force at the time of the primary decision (10 February 1998) can be considered (Repatriation Commission v Gorton (2001) 33 AAR 370 and Repatriation Commission v Williams [2001] FCA 1195).
The third step is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the SoP it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the applicant's service. The central issue addressed in the hearing was whether Mr Robinson's operational service exposed him to stressful events as required in one or other form by each of the relevant SoPs.
The SoP on post-traumatic stress disorder includes a factor, "experiencing a severe stressor prior to the clinical onset of post-traumatic stress disorder" (factor 5(a)).
The SoP on alcohol dependence or alcohol abuse includes a factor, "experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse" (factor 5(b)).
The SoP on anxiety disorder includes a factor for generalised anxiety disorder, "experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder" (factor 5(a)(ii)).
The SoP on depressive disorder includes a factor, "experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder" (factor 5(b)).
The SoP on panic disorder includes a factor, "experiencing a severe stressor within the two years immediately before the clinical onset of panic disorder" (factor 5(a)).
The types of stressful event required have been described as follows in the SoPs.
"The first formulation" is:
"experiencing a severe stressor" means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;.
This formulation applies to post-traumatic stress disorder and panic disorder.
"The second formulation", essentially the same as the first, applies only to alcohol abuse or dependence:
"experiencing a severe stressor" means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;"The third formulation", applicable to anxiety disorder and depressive disorder is:
"severe psychosocial stressor" means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
It is necessary to ascertain whether Mr Robinson's service exposed him to any occurrences or events of the sort described in these SoPs. First, however, it is necessary to ascertain what psychiatric condition Mr Robinson may have, as this will dictate the applicable SoP(s). Dr K Whyte, a general practitioner ("GP"), diagnosed post-traumatic stress disorder, panic disorder and substance abuse on 24 February 1999 (T15). Dr I Hayes, a psychiatrist, said on 16 March 1999 that Mr Robinson had panic disorder, high alcohol intake and was mildly depressed (T16/58. Psychologist Ms R Baker (T16/59) dealt with Mr Robinson for post-traumatic stress disorder, substance abuse, anxiety and panic. Dr I Hayes, a psychiatrist, saw Mr Robinson as agoraphobic, a heavy drinker, as having major depression panic disorder, post-traumatic stress disorder and alcohol dependence (ex TD3/16). Dr A Dinnen, psychiatrist, diagnosed post-traumatic stress disorder and psychoactive substance abuse (ex A2). Dr Dinnen saw post-traumatic stress disorder and psychoactive substance abuse as present. He dismissed anxiety and depression as freestanding conditions regarding them as part of the post-traumatic stress disorder. Dr N J Schultz, psychiatrist, diagnosed alcohol abuse and dependence and anxiety problems, notably panic disorder (ex R1).
It may short-circuit much discussion to consider the material on the stresses experienced by Mr Robinson on service to see whether their description tallies with any of the three formulations. In his statement (ex A1) Mr Robinson identified the period from 27 September 1962 to 11 January 1963 at Ubon as relevant. Ubon was in Thailand. Thailand was under direct threat from Laos whose border was 50 km from Ubon air base. The RAAF jet fighters were at Ubon to assist the Thai Government with the deteriorating situation in Laos. Various terrorist groups operated covertly around the air base and in downtown Ubon, three or four kilometres from the air base. New arrivals at Ubon were alerted to these dangers in orientation sessions. Service persons went downtown in twos or threes and there were curfews. As a communications operator Mr Robinson saw intelligence messages about the deteriorating situation along the Thai/Laos border with reports of terrorist activity in the area. This included the murder of Thais in the border area 50 km away, although the applicant agreed in cross-examination that there were no similar murders at Ubon. He saw Thailand as under immediate threat from Laos. He saw Ubon base as a primary target with air activity at the base increasing every day.
He identified the most stressful aspect at Ubon as the regular 12-hour night guard shift around the air base. Fully armed Thai army and air force personnel accompanied him. There was no perimeter fence. The jungle came close to the edge of the airstrip and living area.
Mr Robinson went on flights as an observer with Thai pilots who engaged in unconventional manoeuvres such as buzzing sampans along the Moon River and flying under a bridge. Two Thai pilots were killed in such low level flying after Mr Robinson left Ubon. Mr Robinson later realised his life could have been ended by flying with the Thais. He said he put his life at risk by flying with them. At the time, he said, it meant nothing to Mr Robinson. In cross-examination the applicant said he flew with Thai pilots six or eight times. It was not part of official duty and was a result of a social invitation. He was one of five communications experts who did this. They experienced a combination of exhilaration and terror. Retrospectively, in view of the Thai pilots' attrition rate, it was a foolish thing to do. He said also that an attraction was to see Trojan aircraft at close quarters, aircraft not used by Australia.
One evening when off duty Mr Robinson, in Ubon township, saw a Thai army major throw a bottle of Mekong whisky at a group of 79th Squadron Australians out of uniform having a drink at a sidewalk bar. The bottle just missed one Australian. The army major also had loaded firearms. Mr Robinson and friends moved on quickly. Mr Robinson agreed in cross-examination that this was the most dangerous incident he witnessed in Ubon. He said, however, that there were rumours that Ubon was to become a hot spot, that it was a terrorist target. There was no actual shelling at Ubon during Mr Robinson's tour of duty. It was shelled later in 1964 or 1968.
On another occasion Mr Robinson and friends stumbled onto a Buddhist cremation. He said that he "saw that sight for a long time" and that he still did.
This material does not readily comply with the first or second formulation of "experiencing a severe stressor". Mr Dawson made a number of arguments in an attempt to convince the tribunal that the SoPs were satisfied. He put that the stress can build up over a period of time. The applicant worked in communications on eight to 12 hour shifts. He saw sensitive communications. This was a stressful period in Mr Robinson's life and the stress was a part of his work. He referred to material in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed, 1995) ("DSM-IV") which provides at page 435 a list of examples of traumatic events. These include military combat, violent personal assault, being kidnapped, being taken hostage and incarceration as a prisoner of war or in a concentration camp. Mr Dawson suggested that the stressor can manifest itself over a period of time such as during the holocaust.
Mr Dawson referred to medical expert evidence that regarded Mr Robinson's post-traumatic stress disorder and alcohol abuse as war-caused. Dr Dinnen gave detailed evidence. To a limited extent Dr Dinnen's evidence was tainted by faulty history. He understood the whisky bottle thrown at Australian troops to have been thrown at Mr Robinson's group (ex A2/2). This was not so. All that Dr Dinnen said in his report (ex A2) was "I believe the definition of stressor given in both Statements of Principles [those for post-traumatic stress disorder and psychoactive substance abuse] does apply". His only explanation as to why was "My understanding, based on clinical experience and knowledge of the opinion of other experts in this field is that the definition found in the Statement of Principles is directed particularly at individuals such as this patient, and I believe that that understanding of the definition of stressor does qualify this patient for acceptance of war caused psychiatric disorder/alcohol abuse" (ex A2/ 5).
In oral evidence Dr Dinnen explained more fully. He said that in general practice post-traumatic stress disorder is accepted as having a more general application than DSM-IV suggests. For instance, a motor vehicle accident is accepted as a potential cause of post-traumatic stress disorder and that is nothing like as extreme as the holocaust. Dr Dinnen referred to the learning of the death of a family member or that a child has a life-threatening disease, examples allowed by DSM-IV, as other instances of a looser stressor. He said that most veterans with post-traumatic stress disorder would not necessarily meet the stringent definition in DSM-IV and in the SoP.
Dr Dinnen did not accept that the event or events had to occupy a discrete moment in time. They could emerge over a period of time. There could be a gradual onset for a veteran. A veteran being shot at during an operational engagement is more likely to be affected by prolonged exposure in the combat zone. He said that there could be discrete events within a prolonged time period. Dr Dinnen saw the stressor formulations as met in this case although Mr Robinson was not in direct combat, he was not shot at and he saw no dead bodies. Dr Dinnen regarded DSM-IV as supporting the idea that a stressor can arise from prolonged exposure, presumably in such examples as a prisoner of war or hostage. There is no need for "a gun at the head". Dr Dinnen saw the prime stressor as Mr Robinson's prolonged stay in a location where there was a constant threat of attack. As put to him by the applicant, the incident of the thrown bottle was not the most dangerous situation he faced.
In cross-examination Dr Dinnen agreed that Mr Robinson never faced an actual situation where there was a threat of death or injury. There was no actual incident. There was a reasonable apprehension of risk based on the information Mr Robinson saw in the communications centre.
Dr Dinnen saw the onset of Mr Robinson's post-traumatic stress disorder as in May 1998 when he sought treatment.
Mr Dawson cited a number of cases to the tribunal. The first, Re Dettmer and Repatriation Commission [2001] AATA 320 saw Senior Member Allen and Member Dr Thorpe state at paragraph 34 that the SoP for generalised anxiety disorder which required the experiencing of a stressful event not more than two years before the clinical onset of generalised anxiety disorder could, along with the factor for post-traumatic stress disorder, be satisfied by a stressor that need not be a distinct individual occurrence but "a sense of apprehension or fear existing during a period of time" (paragraph 34). The tribunal considers that this may be correct in relation to post-traumatic stress disorder if there was some actual firing on the place or vessel or aircraft where, or in which, the veteran was serving. In that case the tribunal rejected the diagnosis of post-traumatic stress disorder in any event.
In Re Hamilton and Repatriation Commission [2000] AATA 299 the tribunal found that the veteran had been exposed to traumatic events on the HMAS Perth during operational service. He was found to have war-caused post-traumatic stress disorder. The stressful event was that he had his leg in plaster when divers were spotted in the water. Vietnamese boats were sunk. There was threat of serious injury to the veteran and he responded with a sense of helplessness and fear. The tribunal had some difficulty finding in the hypothesis presented in the current case a similar element of threat of serious injury to Mr Robinson that engendered helplessness and fear.
Mr Dawson cited Re Chaplin and Repatriation Commission [2000] AATA 688 where at page 6 the tribunal criticised the SoP on post-traumatic stress disorder for its use of the DSM-IV criteria for a forensic purpose, something the editors of DSM-IV counselled against. Mr Dawson also noted that Senior Member Allen in that case emphasised that there is a subjective element in the post-traumatic stress disorder requirements, that is that the veteran reacted with intense fear, helplessness or horror. That is uncontroversial. However, Senior Member Allen recognised that there is an objective element also, that is that there must have been an event or events that involved actual or threatened death or serious injury. It is this objective element that most usually causes the veteran problems.
The tribunal finds that none of the various descriptions of events advanced as part of the hypothesis satisfies the requirements for "experiencing a severe stresssor" as per the first or second formulation. The general service by Mr Robinson in Ubon did not, on the description presented, involve any actual firing or enemy activity affecting or in the vicinity of the camp at Ubon. The necessary factor of actual threat of death or serious injury was not present.
Mr Robinson's guard duty, as described, likewise lacked the essential requirement of actual threat of death or serious injury. The situation may have been different if there had been a history of attacks on those doing guard duty.
Mr Robinson's flights with the Thai pilots may have carried some risk of death or injury, especially as two pilots were said to have been killed. However, it was, on Mr Robinson's own account, only later that he could be said to have experienced any sense of horror at what he had done when in Ubon. This particular element is omitted from the first formulation but it is included elsewhere in the SoP. In the post-traumatic stress disorder SoP it appears in clause 2(b)(A)(ii), which, with clause 2(b)(A)(i), overlaps considerably with the first formulation.
The incident in which Mr Robinson witnessed a Thai army major throw a bottle of whisky at off-duty Australians did not, as described, involve any threat of death or serious injury to the applicant or another person. There was only one bottle. It missed its target. The incident was a fleeting incident.
The Buddhist cremation, while doubtless unpleasant, did not as described involve any threat of death or serious injury to Mr Robinson or another person.
The tribunal as currently constituted recently considered the issue of the need for there to be an actual threat of death or serious injury as an objectively verifiable factor in Re Hunter and Repatriation Commission [2002] AATA 485 in paragraphs 57-60 and here reiterates what it said there.
The consequence of these considerations is that the hypothesis that Mr Robinson suffers from a war-caused post-traumatic stress disorder and psychoactive substance abuse as a result of experiencing a severe stressor is not a reasonable hypothesis because step 3 of Deledio (above) has not been satisfied. Because the condition of panic disorder relies also on the first formulation there can be no reasonable hypothesis linking that condition with operational service, at least on the basis of a factor involving experiencing a severe stressor.
However, as noted earlier, if a veteran fails upon application of a SoP currently in force, it is appropriate to consult the SoP in force as at the time of the primary decision.
For post-traumatic stress disorder this was SoP 15/94 as amended by SoP 225/95. The relevant factor in the former SoP involved experiencing a stressor prior to the clinical onset of post-traumatic stress disorder (factor 1(a)). The definition of "experiencing a stressor" then as now contained elements requiring the objective presence of an event that involved actual or threatened death or serious injury, along with a response involving intense fear, helplessness or horror. This SoP does not materially alter the analysis applicable under the current SoP.
For psychoactive substance abuse or dependence the earlier SoP was SoP 5/94. Factor 1(a) involved experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service. A "stressful event" was defined in clause 4 as "an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress". This is a much looser definition than that for post-traumatic stress disorder, then or now, and that for alcohol abuse or alcohol dependence in the current SoP.
Mr Robinson in his alcohol questionnaire (ex TD3/9) said that he began to consume alcohol in 1961. In cross-examination he altered this by saying that pre-service he hardly drank at all. He drank less than once weekly. He drank beer and had two or three drinks on payday. In cross-examination he increased this estimate to a half-dozen drinks on pay night. During Ubon operational service, "due to stress war/defence caused" he became drunk whenever he could. He said it was every day. By 4 February 1998, the date of the document, he drank beer, wine and rum at a rate of 24 standard drinks a day. In cross-examination Mr Robinson said that he drank an average of six glasses of beer a day, although this could increase to eight, 10 or 12 middies. Sometimes he drank rum or red wine in addition or in place of the beer. In cross-examination Mr Robinson said that his alcohol consumption grew after Ubon up to 7 April 1998. There was some evidence at the hearing that Mr Robinson had operated heavy machinery while intoxicated and had put a worker at risk in doing so. This, plus the general history of Mr Robinson's drinking, were said by Mr Dawson to satisfy the definition of "psychoactive substance abuse or dependence" in clause 4 of SoP 5/94. This was:
"psychoactive substance abuse or dependence" means a maladaptive pattern of use, attracting ICD code 303 or 304, that is indicated by either:
(a) continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b) recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated);The tribunal notes that a "stressful event" in SoP 5/94 requires a hypothesis suggesting an incident involving external stimuli that would result in psychological stress. The tribunal considers that what might be termed a general climate of tension in Ubon associated with the Thai/Laotian border can be described as "an incident" using only a torturous interpretation of the word "incident". The murder of the Thais near that border was an incident but its remoteness from Mr Robinson makes it difficult to conceive of it as an incident that would result in psychological stress in Mr Robinson. The nighttime guard duty is difficult to accept as a relevant incident. Armed military personnel accompanied Mr Robinson and there was no suggestion of any actual attacks on guardsmen. The flights with the Thai pilots did not engender subjective symptoms of increased stress. The bottle-throwing incident may have been unsettling but would not qualify as an external stimulus "such as combat". The incident was over once and for all once the bottle was thrown and it was not thrown towards Mr Robinson. The Buddhist cremation, again perhaps unpleasant, was not an incident like combat that would engender psychological stress. The tribunal therefore finds that the hypothesis as presented was not consistent with the template provided in SoP 5/94 concerning psychoactive substance abuse or dependence. At this stage of analysis, therefore, the hypothesis remains not a reasonable hypothesis.
However, the hypothesis could be consistent with "the third formulation" and permit conditions of anxiety disorder and/or depressive disorder to be war-caused conditions. The definition in the SoPs (see paragraph 11, above) emphasises the evocation of feelings of substantial distress in an individual such as Mr Robinson. However, the examples listed in the definition are either fairly extreme, such as being shot at, the death or serious injury of a close friend, an assault, major illness or injury, or are quite inapplicable in this case. The latter examples include divorce, separation, loss of employment, major financial problems or legal problems. The definition requires an identifiable occurrence.
Of the matters raised in the hypothesis as causing distress to Mr Robinson the tribunal considers that the murders on the Thai/Laos border might be relevant. The guard duty, repeated as it was, could constitute a series of such occurrences, although the lack of any actual firing on guardsmen is a possible problem. The incident of the thrown bottle is too limited to qualify as the relevant form of identifiable occurrence. The incident of the cremation bears no resemblance to the listed examples. It is possible that the whole period of unease caused by Mr Robinson's appreciation of the risks and dangers involved in service at Ubon could constitute an identifiable occurrence. The earlier tribunal decision in Re Kelly and Repatriation Commission [2001] AATA 254 provides some support for this, although the tribunal was addressing an earlier SoP on generalised anxiety disorder. At paragraphs 67-69 the tribunal wrote:
"67. The Tribunal finds that the Mariner was young and immature when he went to sea, and to some extent what his family saw when he returned from his service on the SS River Burdekin was the product of his maturation. He has always been a serious person and was told by his peers on service that he was very serious. While the Mariner probably had the constitutional predisposition to develop an anxiety disorder, there is no evidence that he suffered from any psychopathological condition prior to the commencement of his service on SS River Burdekin.
"68. In Instrument No.49 of 1994 a 'stressful event' means 'an occurrence which evokes feelings of anxiety or stress'. The Mariner's case is that hearing the war stories from the Gunners on board evoked feelings of anxiety and stress. They caused him to be hypervigilant, to a point where when he saw dolphins in the distance he became anxious, thinking it was a sign of imminent danger. The knowledge the Mariner had of enemy activity, including submarines and mines, in the seas around Australia in which he was travelling, which on at least one occasion was sufficiently serious to cause his ship to have an escort, constitutes an 'occurrence' or a series of 'occurrences' that evoked for him feelings of anxiety and stress.
"69. The Tribunal notes the submissions made by the Commission about the term 'even' and the fact that, in effect, it must be circumscribed, identifiable and specific rather than 'an ordinary course of life'. While hearing stories in some instances might be 'an ordinary course of life', in the Mariner's case the Tribunal finds that his hearing the stories were specific events, after which he became anxious, aroused, 'nervous' and intense. The Tribunal finds that hearing those stories were for him 'stressful events'."The tribunal adopts the Kelly (above) analysis in the instant case and finds that the applicant's hypothetical stress resulting from the intelligence he intercepted that suggested the vulnerability of the base at Ubon was a description of an identifiable occurrence evoking feelings of substantial distress in Mr Robinson, as described in the SoP.
However, the SoP requires that the severe psychosocial stressor must have operated within the two years immediately before the clinical onset of Mr Robinson's anxiety disorder. Dr Schultz diagnosed panic disorder (ex R1). This would exclude the application of SoP 1/2000 concerning anxiety disorder. Clause 2(b) says that the definition of anxiety disorder excludes other anxiety spectrum disorders such as post-traumatic stress disorder, acute stress disorder and panic disorder. No psychiatrist who has seen Mr Robinson has diagnosed generalised anxiety disorder. Some have diagnosed post-traumatic stress disorder, although Dr Schultz saw that as non-viable because of the absence of many of the required symptoms. Dr Hayes (ex TD3/16) diagnosed panic disorder, among other conditions. The SoP on generalised anxiety disorder in force in 1998 (SoP 48/94) also did not apply where the focus of the disorder was confined to, among other things, panic disorder (clause 4, definition of "generalised anxiety disorder", paragraph (iii)(A)). Thus, Mr Robinson cannot utilise the earlier SoP to assist him here.
Also unfortunately for Mr Robinson, for panic disorder the hypothesis must posit that he experienced a severe stressor as in "the first formulation" (SoP 58/99). The tribunal has already found that the hypothesis did not posit such a stressor. The earlier SoP on panic disorder (SoP 31/98) defined "experiencing an acute severe stressor" along the same lines as "the second formulation". The tribunal has already also found that the hypothesis did not posit a stressor sufficient to satisfy the second formulation. The hypothesis was, therefore, not in accordance with the SoP as in force now or in 1998. The hypothesis connecting operational service with panic disorder is, therefore, not a reasonable hypothesis.
The one possibility that remains is that Mr Robinson's depressive disorder was war-caused. "The third formulation" applies for depressive disorder (SoP 58/98, clause 8). It has already been decided in paragraph 39 above that Mr Robinson's hypothesis may satisfy this definition. Dr Hayes (ex TD3/16) diagnosed major depression. The tribunal takes it that his diagnosis meets the description in the definition of "depressive disorder" in clause 2(b)(A)(i) of SoP 58/98 as a "major depressive disorder". The factor in the SoP that must be reflected in the hypothesis is that Mr Robinson experienced "a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder" (factor 5(b)). Mr Robinson claimed in 1998 that his post-traumatic stress disorder, substance abuse and anxiety state commenced in 1962 (ex TD3/4). There was no reference to depression. Dr K N Whyte, Mr Robinson's general practitioner, placed the onset of psychiatric treatment as in 1998 (T15). Dr Dinnen saw the onset of psychiatric conditions as in May 1998. The applicant claimed in earlier years for Disability Pension but did not seek a pension in respect of psychiatric conditions until February 1998. The hypothesis as presented does not posit that Mr Robinson suffered from a depressive disorder from within two years of the time of his service in Ubon. There is thus no reasonable hypothesis relating Mr Robinson's depressive disorder to his operational service. The earlier SoP on depressive disorder, SoP 65/96, contained a factor in the same terms as that in the current SoP. Recourse to the earlier SoP will not assist Mr Robinson. There was, therefore, no reasonable hypothesis connecting any depressive disorder to Mr Robinson's operational service.
CONCLUSIONMr Robinson has as accepted disabilities solar keratoses, basal cell carcinoma and bilateral sensorineural hearing loss with tinnitus (ex TD1/1). At the close of this review process they remain the accepted disabilities. The only argument for increasing Mr Robinson's impairment rating under the Guide to the Assessment of Rates of Veterans' Pensions (5th ed) ("GARP"), was the acceptance of additional disabilities as war-caused. Mr Robinson's correct rate of Disability Pension therefore remains at 40% of the general rate. This is too low a rate to permit consideration of his entitlement to payment at the special or intermediate rate. Sections 23(1)(a)(i) and 24(1)(a)(i) of the Act require a GARP impairment rating of at least 70% before these higher rate pensions can be considered.
DECISIONThe tribunal affirms the decisions under review.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member
Signed: .....................................................................................
AssociateDates of hearing 13 February 2001 and 24 April 2002
Date of decision 4 October 2002
Counsel for the applicant Mr N Dawson
Solicitor for the applicant R L Whyburn & Associates Solicitors
Counsel for the respondent Mr S Modder, DVA Advocacy Service
Solicitor for the respondent Mr J Marsh, DVA
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