Rose and Repatriation Commission
[2005] AATA 1124
•14 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1124
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/909
VETERANS' APPEALS DIVISION ) Re IAN WILLIAM GEORGE ROSE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date14 November 2005
PlaceBrisbane
Decision The Tribunal varies the decision under review by determining that the disabilities of alcohol abuse, depressive disorder and alcohol abuse, suffered by Ian William George Rose, are related to his service with the Australian Army, within the meaning of those terms in section 9 of the Veterans’ Entitlements Act 1986, with effect from 12 May 2002.
................SIGNED..............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS’ AFFAIRS – depressive disorder, anxiety disorder, alcohol abuse – onset of alcohol abuse and anxiety disorder within two years of claimed psychosocial stressor – depressive disorder from ongoing service related back pain - SoPs satisfied – reasonable hypothesis linking disabilities to service – decision varied
Veterans’ Entitlements Act 1986, s.9
REASONS FOR DECISION
Deputy President Don Muller 1. Ian William George Rose, the Applicant, suffers from Depressive Disorder (DD) Anxiety Disorder (AD) and Alcohol Abuse (AA). He claims that his DD, AD and AA were caused by his experiencing traumatic incidents whilst he was serving with the Australian Army in Malaya in 1961/63. His claim is for disability pension and medical treatment for his DD, AD and AA on the grounds that his disabilities are related to his service.
2. His claim has been rejected by the Respondent.
3. The Veterans’ Review Board has affirmed the Respondent’s decision to reject the claim.
4. Mr. Rose seeks a review of the decision to reject his claim.
5. At the hearing of this review, Mr. Rose was represented by Mr. Honchin of counsel and the Respondent was represented by Mr. Stoner.
6. The following facts are not in dispute and the Tribunal finds as follows:
(a)Ian William George Rose was born on 5 September 1940, in Heywood, Victoria.
(b)He left school at the age of 14 and worked for his father on the family farm. He also worked in the abattoirs in Portland from when he was 17 years until he was 19, on a seasonal basis.
(c)He left home when he was 19 years of age, to join the Army. He served in the Australian Army from 26 September 1959 until 30 January 1981.
(d)He rendered operational service during the following periods:
(i)12 October 1961 to 27 May 1963 – Far East Strategic Reserve
(ii)28 May 1963 to 2 July 1966 – Malaya
(iii)14 April 1966 to 4 September 1966 – Brunei, Sabah and Sarawak.
(e)He rendered eligible defence service from 7 December 1972 until his discharge on 30 January 1981.
(f)He suffers from the following war-caused disabilities:
(i)Lumbar Spondylosis;
(ii)Bi-lateral tinnitus;
(iii)Bi-lateral sensori neural hearing loss;
(iv)Osteoarthrosis of the right knee;
(v)Gastro-oesophageal reflux; and
(vi)Chronic skin damage, with malignant change
(g)Whilst serving in the Far East Strategic Reserve, near the Thai Malaysia border, his patrol group was stalked from time to time by tigers, panthers and elephants. He found that it was a terrifying ordeal to sleep on the ground at night with the knowledge that the wild animals could enter the camp. He found it unnerving that some of his comrades elected to sleep in the trees at night. His patrol group was usually on patrol for three months at a time. His fear of the wild animals was exacerbated by his reading and hearing about people being taken by tigers and panthers in the area. During the period he served in Malaysia he spent about 60% of the time in the bush. He was continually anxious/frightened while on patrol.
(h)Whilst serving at Terendak Garrison he was threatened by another soldier who was wielding a machete. He initially thought that the soldier was joking and went towards the soldier to talk to him. The soldier then threatened to kill him and he realised the soldier was serious. He was badly shaken by the incident.
(i)He began to drink heavily after he returned from patrols in the bush. He began to have nightmares about tigers following him and chasing him through the bush. He also had nightmares about the soldier with the machete.
(j)At Terendak Garrison he began to drink excessively and regularly to get a good night’s sleep.
(k)Whilst on patrols he would regularly carry a pack weighing 50 kgm.
(l)He began to experience severe back pain in the 1970s.
(m)He was transferred to working in the store. However, this required him to lift and carry heavy loads.
(n)He eventually developed chronic back pain.
7. Mr. Rose has been examined by four psychiatrists, who have each made the following diagnoses of Mr. Rose’s problems:
Dr. Likely: anxiety disorder, depressive disorder and alcohol abuse/dependence.
Dr. Green: depressive disorder
Dr. Cook: depressive disorder
Dr.Mulholland: chronic major depressive disorder, chronic alcohol abuse/dependence and (provisional) chronic post traumatic stress disorder (not capable of working and not expected to improve.)
8. I find that Mr. Rose is suffering from depressive disorder, anxiety disorder and alcohol abuse/dependence.
9. The evidence produced to the Tribunal indicates that Mr. Rose experienced a range of stressors during his service (the long patrols in bush which contained dangerous wild animals, plus the machete incident), which gave rise to an anxiety disorder and alcohol dependence. He also suffered from severe back pain due to developing lumbar spondylosis, the constant pain of which led to a depressive condition and further alcohol abuse.
10. This is one of those rare cases in which the four psychiatrists all appear to essentially agree with each other. Dr. Mulholland’s summary and opinion encapsulates the opinions of the other three. He said:
“Note that the diagnosis of post traumatic stress disorder is provisional and is arguable. The main issue is whether matters in respect of the wild animals in South East Asia could be regarded as constituting Criterion A events or not. As I see it the issue could be argued both ways and ultimately it is up to the AAT to determine. If the notion of Criterion A is not accepted then the fallback diagnosis would be generalised anxiety disorder. Note that generalised anxiety disorder and post traumatic stress disorder are within the same family of psychiatric disorders and are both regarded as anxiety spectrum disorders.
The history is that features of anxiety and excessive intake of alcohol commenced during his operational service and have continued. The depression appears to be secondary to excessive intake of alcohol and pain from a chronic back condition.
The timing of the onset of the original anxiety spectrum disorders and excessive intake of alcohol was probably during his operational service even though he was not recognised as having a diagnosable psychiatric disorder until many years later.
The timing of onset of depression appears to have been much later e.g. perhaps during 1990s.”
11. The Repatriation Medical Authority has produced Statements of Principles for each of the claimed disabilities. The relevant parts of those SoPs are as follows:
Depressive Disorder: No. 58 of 1998
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder…. with the circumstances of a person’s relevant service are:
…
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
…
(e)suffering from chronic pain of at least six months duration at the time of the clinical onset of depressive disorder;
Other definitions
8. For the purposes of this Statement of Principles:
“chronic pain” means 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;
“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), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
Alcohol Dependence or Alcohol Abuse: No. 76 of 1998
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse…. with the circumstances of a person’s relevant service are:
….
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
Other definitions
8. For the purposes of this Statement of Principles:
“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.
Anxiety Disorder: No. 1 of 2000
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder… with the circumstances of a person’s relevant service are:
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified, only
….
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder;
Other definitions
8. For the purposes of this Statement of Principles:
“severe psychosocial stressors” 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”
12. Mr. Stoner conceded, on behalf of the Respondent, that the “machete incident” satisfies the required stressor for the purpose of the three SoPs referred to above.
13. I also find that the fear of dangerous wild animals whilst on patrol for lengthy periods also satisfies the required stressor for the purpose of the three SoPs referred to above.
14. I also find that Mr. Rose suffered from service related chronic back pain as a result of his accepted disability of lumbar spondylosis and that the said pain was of more than six months duration. In fact it had continued for many years prior to the time of the clinical onset of Mr. Rose’s depressive disorder.
15. I accept the evidence of the psychiatrists that Mr. Rose’s anxiety disorder and excessive intake of alcohol probably began during his operational service. That is, he experienced the required stressors within the two years immediately before the clinical onset of anxiety disorder and of alcohol abuse.
16. Consequently, I find that there are reasonable hypotheses which have been raised connecting Mr. Rose’s depressive disorder, anxiety disorder and alcohol abuse with the circumstances of his relevant service.
17. I cannot be satisfied beyond reasonable doubt that the claimed disabilities are not war-caused.
18. The decision of the Repatriation Commission dated 12 December 2002, is varied. I find that Mr. Rose’s alcohol abuse, depressive disorder and anxiety disorder are related to his service within the meaning of those terms in section 9 of the Veterans’ Entitlements Act 1986, with effect from 12 May 2002.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
R. Link, AssociateDate/s of Hearing 4 August 2005
Date of Decision 14 November 2005
Counsel for the Applicant Mr. D. Honchin
Solicitor for the Applicant Purcell Taylors Lawyers
Respondent Mr. J. Stoner, departmental advocate
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