Rossiter and Repatriation Commission

[2005] AATA 178

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 178

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2003/866

VETERANS’ APPEALS DIVISION		)
Re		GREGORY ROSSITER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal       Senior Member B J McCabe

Dr K Kennedy, Member

Date              3 March 2005

PlaceBrisbane

Decision

The decision under review is set aside. The Tribunal finds that:

1.     The applicant suffered from adjustment disorder with depressed mood which evolved into his current depressive disorder.

2.     The depressive disorder is attributable to the applicant’s eligible service.

3.     The date of effect is 2 May 2002.

.................[Sgd]........................

SENIOR MEMBER

Administrative

Appeals

Tribunal

 

ADMINISTRATIVE APPEALS TRIBUNAL     )

)No  Q2003/866

VETERANS’ APPEALS DIVISION		)
Re		GREGORY ROSSITER

Applicant  

And REPATRIATION COMMISSION

Respondent

CORRIGENDUM [2005] AATA 178

Tribunal Senior Member B J McCabe and Dr K Kennedy, Member

Date8 April 2005 

PlaceBrisbane

I HEREBY DIRECT that the Decision issued by the Tribunal on 3 Marsh 2005 be amended so that the Decision Page and paragraph 45 of the Reasons read as follows:

§On the Decision Page point 4 be added as follows:

“4.       The matter is remitted to the Repatriation Commission for the purpose of   assessment.”

§In paragraph 45 of the Reasons after the date of 2 May 2002 the following be added:

“The matter is remitted to the Repatriation Commission for the purpose of   assessment."

[Sgd]

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ entitlements – disability pension – war caused injury during operational service – diagnosis of psychiatric condition in issue – post-traumatic stress disorder – adjustment disorder – depressive disorder - date of onset in issue – applicant suffered a psychosocial stressor – applicant suffered from adjustment disorder with depressed mood which evolved into his current depressive disorder – psychiatric condition is attributable to the applicant’s eligible service – decision under review is set aside and substituted accordingly.

Veterans’ Entitlements Act 1986, s120

Deledio v Repatriation Commission (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144; BC9801313

McKenna v Repatriation Commission (1999) 86 FCR 144; (1999) 29 AAR 70; [1999] FCA 323; BC9901335

Stonehouse and Repatriation Commission [2004] AATA 707.

REASONS FOR DECISION

3 March 2005

introduction

4.      Mr Gregory Rossiter served with the Army in Vietnam. He now suffers from a psychiatric condition. He says the condition is attributable to his experiences while on operational service. The Repatriation Commission disagrees, and its decision was affirmed by the Veterans’ Review Board. Mr Rossiter has now asked the Tribunal to consider his claim.

5.      This case raises difficult questions of diagnosis. The doctors both agree the applicant suffers from a psychiatric condition, but they cannot agree on a precise diagnosis. There is also some dispute over the date of onset of the condition.

6.      We are satisfied the applicant suffers from a compensable condition. We have therefore decided to set aside the determination of the Commission and remit the matter so the amount of the pension entitlement under the Veterans Entitlements Act 1986 (the Act) can be calculated. We explain our reasons below.

the material before the tribunal

7. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were also tendered in evidence:

·Statement of Gregory William Rossiter dated 1 December 2003 (exhibit 2);

·Supplementary statement of Gregory William Rossiter dated 12 July 2004 (exhibit 3);

·Document titled “Reply to AAT Report” undated (exhibit 4); and

·Writeway research report dated 8 July 2004 with email attachments (exhibit 8).

8.      Two bundles of slides were also tendered in evidence. One bundle of slides depicts the applicant’s involvement in the shipment of heavy equipment. Mr Rossiter says the other bundle shows a huge fire he witnessed in Saigon.

9. The s 37 documents (the T documents) included medical reports from Drs Anderson and Mungomery. Both doctors provided additional reports:

·Report of Dr Bob Anderson dated 12 February 2004 (exhibit 5);

·Report of Dr Quentin Mungomery dated 17 March 2004 (exhibit 6);

·Report of Dr Quentin Mungomery dated 31 May 2004 (exhibit 7);

Both doctors gave oral evidence. Mr Barsley, the author of the Writeway report, also gave evidence. So did Mr Rossiter.

10.     Mr Rossiter was represented by Mr Harding of counsel. Mr Williams represented the respondent.

the background facts

11.     Mr Rossiter was a national serviceman. He enlisted in the Army on 8 July 1969 and he was discharged on 7 July 1971. His eligible service occurred in Vietnam between 30 April 1970 and 11 February 1971.

12.     The applicant underwent corps training with the Royal Australian Engineers. He trained in particular as a transport operator. He was posted to 11 Movement Control Group as a traffic controller while he was in Vietnam. Mr Rossiter’s unit managed sea, land and air transport to and from Australia, and within Vietnam. He was initially based in Vung Tau. His work there focused on managing the movement of cargo and personnel aboard C 130 Hercules flights travelling between Vietnam and Australia. After about three months, he was transferred to Nui Dat to work with other members of the unit.

13.     Mr Rossiter’s work in Vung Tau included responsibility for the movement of the remains of deceased servicemen. He says he handled 19 caskets containing the bodies of men killed in action during this time. His work did not simply involve the physical movement of the caskets onto the plane. He was also required to complete documentation containing information about the cargo, which included some personal information about the dead soldiers. The applicant says he has recalled the memory of the caskets on the loading bay of the plane every day since.

14.     While he was posted to Nui Dat, the applicant was involved with the transport of heavy equipment by water. The unit utilised the Army’s landing ships, including AV Clive Steele and AV Harry Chauvel. He spoke of one incident in particular that occurred while he was aboard the Harry Chauvel. Apparently the vessel discharged its cargo near Baria but became stuck on a mudflat where it was exposed to enemy action.

15.     The applicant was also required to perform guard duties while he was in Nui Dat. He was promoted to Corporal and had responsibility for a stretch of the base perimeter when he was on guard duty. He led a detachment of six men. He recalled one night when he heard movement outside the perimeter. He feared there were Vietcong in the area who might attempt an attack on the base. His position commenced firing. His action was supported by artillery fire. The applicant said he felt scared but he also felt he was not up to the job: he was an administrator who had not been properly trained for this sort of action. He said he felt weighed down with the responsibility.

16.     Mr Rossiter also described witnessing a huge fire in Saigon. He showed photographs of the fire to the Tribunal. A large slum area within the city caught fire. There was general panic. The applicant and a colleague had been in the entertainment district when they decided to return to their quarters. They hailed a rickshaw driver. The driver took their fare but turned them out near the site of the fire. The applicant said it was a very distressing scene.

17.     The applicant says he was a normal, happy individual before he went to Vietnam. He says he became increasingly distressed and withdrawn while he was there. He did not drink to excess, he says, because he wanted to remain sharp in case of trouble. His wife says he was a changed man when he returned home. He says he continued to suffer from intrusive recollections and other symptoms of a psychiatric condition. He threw himself into his work but had difficulty socialising.

18.     The applicant began work as an ambulance driver some time after his return from service. He agrees he saw many distressing things in that role, although he said he was philosophical about the injuries and loss of life. He has acted as a counsellor and mentor to other ambulance officers.

19.     The applicant’s symptoms have been worsening in recent times. He already receives a pension in respect of other accepted conditions. He has asked for an increase in that pension.

diagnosis

20. The first question to be resolved is that of diagnosis. Section 120(4) says we must decide that question to our reasonable satisfaction.

(a) What the doctors say

21.     Dr Anderson was called by the applicant. Dr Anderson is the applicant’s treating psychiatrist. He preferred a diagnosis of post traumatic stress disorder (PTSD). He says he was satisfied the events outlined by the applicant (referred to above) were severe stressors within the meaning of DSM-IV. He said the symptoms he identified (including intrusive recollections, flashbacks, numbing, hyper-arousal, sleeplessness) were classic symptoms of PTSD.

22.     Dr Anderson agreed that an alternative diagnosis of adjustment disorder with depressed mood was available, although he made it clear he preferred a diagnosis of PTSD. He argued that if a diagnosis of adjustment disorder was to be made, the onset of the condition occurred in Vietnam as a result of events he was exposed to during his service. He said the condition has persisted because the applicant continues to re-experience the events: in particular, he recalls the scene of the caskets being loaded on to the plane every day. Although adjustment disorders are ordinarily a temporary phenomenon, Dr Anderson said they could persist where the applicant has never come to terms with the original stressor, even though the stressor is now a matter of history.

23.     Dr Mungomery initially diagnosed an adjustment disorder with depressed mood. After a more recent examination in which he had access to Dr Anderson’s report and to the applicant’s statement discussing the stressors, Dr Mungomery offered a differential diagnosis. He suggested the applicant suffered from an adjustment disorder with depressed mood which has segued into a depressive disorder. He conceded in cross-examination that the depressive disorder may have commenced during the applicant’s service in Vietnam, although he said his best guess was that it commenced 10-15 years ago. If that were so, the diagnosis of adjustment disorder would no longer be applicable.

24.     The representatives of the parties and the Tribunal questioned Dr Mungomery closely. He made it clear that he thinks Mr Rossiter’s psychiatric condition – however it might be labelled – began in Vietnam and has continued ever since. He said the symptoms have varied in intensity over that time: they settled somewhat after Mr Rossiter’s return from Vietnam, but intensified during his employment with the Queensland Ambulance Service. Dr Mungomery says the symptoms have never really gone away.

(b) Our conclusions

25.     We are not satisfied the applicant suffers (or suffered) from PTSD because we are unable to accept that any of the events he identified qualify as severe stressors within the meaning of that expression in DSM-IV or the relevant statement of principles. While each of the events was undoubtedly stressful, we are not satisfied Mr Rossiter exhibited the type of response required by the definition. Nor are we satisfied the events were sufficiently severe to invoke a reaction of “intense fear, helplessness, or horror” in a person with Mr Rossiter’s background and experience.

26.     We are also troubled by the suggestion that an adjustment disorder could persist when the stressor – dealing with the caskets containing the remains of the dead soldiers, for instance – ended over 30 years ago. Dr Anderson suggested in his evidence that the ongoing recall of the events might cause the condition to persist. He later clarified it was the applicant’s failure to adjust to the events that transpired 30 years ago in Vietnam that was the real issue. This meant the definition could still be validly satisfied.

27.     We were referred during the course of submissions to the text of DSM-IV dealing with adjustment disorders, which is reproduced in the relevant statement of principles. The text reads:

By definition, an Adjustment Disorder must resolve within 6 months of the termination of the stressor (or its consequences) (Criterion E). However, the symptoms may persist for a prolonged period (i.e., longer than 6 months) if they occur in response to a chronic stressor (e.g., a chronic, disabling general medical condition) or to a stressor that has enduring consequences (e.g., the financial and emotional difficulties resulting from a divorce).

28.     Mr Harding said the ongoing failure to integrate or deal with the traumatic events in Vietnam was a chronic stressor.

29.     We think that approach strains the interpretation of the relevant passage of DSM-IV although we do not need to express a concluded view on that point. We are satisfied Dr Mungomery’s alternative diagnosis (adjustment disorder with depressed mood, evolving into a depressive disorder) adequately explains the symptoms. Dr Mungomery is an independent expert. He is not the treating psychiatrist, so there is no question of him being affected by the ongoing doctor- patient relationship. He has had ample opportunity to observe the applicant and review the extensive material. We are satisfied his views should be preferred in the circumstances.

30.     Having formed a view about the proper diagnosis, it remains for us to reach a view about the date of onset. There is little doubt the adjustment disorder had its onset during the time of the applicant’s service in Vietnam. That much is clear from the evidence of both doctors who noted evidence about the changes in the applicant’s behaviour upon his return to Australia. It is unclear precisely when the condition evolved into a depressive disorder. We have already noted Dr Mungomery guessed the diagnosis of depressive condition was able to be made around 15 years ago, but we also noted the concession from Dr Mungomery that the depressive condition could have been present since 1970.

31.     We are satisfied from the evidence of both doctors that the condition – however it is labelled – has persisted since his time in Vietnam. The applicant’s evidence suggests the symptoms began to emerge while he was working in Vung Tau, and there is no reason to doubt his account on this point. There is no evidence suggesting the condition was cured or was in remission at any point before re-emerging in response to other stressors while the applicant was working with the Queensland Ambulance Service. Whether the adjustment disorder evolved into a depressive condition shortly after his return or some years later, there is no doubt that one flowed from the other without a temporal break.

Is the condition attributable to the applicant’s eligible service?

32. Section 120 of the Act requires that we evaluate claims using the process set out in that section. The operation of the section was explained by the Full Federal Court in Deledio v Repatriation Commission (1998) 49 ALD 193.

33.     The first step is to identify the applicant’s hypothesis. That is easy enough in this case. He claims he was exposed to a number of distressing events during his eligible service in Vietnam. Those distressing events were psychosocial stressors that triggered a psychiatric condition which persists to this day.

34.     The second step in the Deledioprocess requires that we identify the relevant statements of principles. In this case, the relevant statements (SoPs) are No 57 of 1996 (relating to adjustment disorder) and No 58 of 1998 (relating to depressive disorder). Given the diagnoses we have reached, the decision of the Full Federal Court in McKenna v Repatriation Commission(1999) 86 FCR 144 suggests it will be necessary for the applicant to satisfy both SoPs.

35.     The third step in the Deledioprocess requires that we determine whether the applicant’s story “fits” the template of the relevant SoPs. We do not engage in fact finding at this stage: we are simply required to determine whether the story he has told is capable of meeting the SoPs. If it does not fit, the hypothesis is not reasonable, and the claim must fail.

36.     The SoP dealing with adjustment disorders requires that the applicant experience “an identifiable psychosocial stressor or stressors within the three months immediately before the clinical onset of adjustment disorder.” The expression psychosocial stressor is defined in the SoP to mean:

… an injury, disease or occurrence that evokes in an individual feelings of substantial anxiety or stress (for example being shot at, being involved in a motor vehicle accident, experiencing a failure or loss such as divorce; or receiving a diagnosis of a disabling medical condition such as a malignancy or chronic cardiorespiratory disorder)

37.     We are satisfied the applicant’s experience dealing with the caskets constitutes a psychosocial stressor within the meaning of the SoP. We note he was not merely acting as a baggage handler who saw caskets on the plane: he had to process the information about each casket, which included details such as the deceased soldier’s name, age and unit. The applicant said he felt a dreadful sense of waste. He spoke of lives ruined, and felt deeply for the families who would soon be burying their sons.  While anyone serving in Vietnam might feel a sense of waste when seeing the remains of unknown colleagues flown from the country in caskets, we are satisfied the applicant was likely to feel a heightened sense of distress because he was privy to a number of personal details of the deceased soldiers with whom he dealt.

38.     The applicant dealt with the remains of 19 soldiers during his time in Vung Tau. We are satisfied the dealings constitute an identifiable occurrence within the meaning of the SoP, and we are satisfied the applicant’s dealings with the deceased, while not a personal relationship, nonetheless bears that social dimension which is characteristic of psychosocial stressors: see, generally, Stonehouse and Repatriation Commission [2004] AATA 707.

39.     The applicant says his symptoms can be traced back to these events which occurred towards the start of his eligible service in Vietnam. We are satisfied the applicant’s response to the stressor was reasonable, and that he had the response he claimed to have experienced.

40.     The other events described by the applicant are harder to classify as psychosocial stressors within the meaning of the SoP. We note the applicant’s evidence in relation to the incident while guarding the perimeter suggests the predominant emotion was not fear, although undoubtedly he was scared. The real problem was that he felt inadequately trained to deal with the responsibility of looking after his men and those whom he guarded.  That response makes the event sound like a psychosocial stressor, although we question whether the distress engendered was sufficiently intense to satisfy the definition. (Of course, it may be that the applicant’s experience was made more intense by his already fragile mental state.)

41.     We do not think the other events – being exposed while the vessel in which he travelled was stuck in the river, and witnessing the fire – were of sufficient intensity or of a kind to satisfy the definition of psychosocial stressor.

42.     In any event, we are satisfied at least one of the events described by the applicant qualified as a psychosocial stressor occurring within three months before the onset of the adjustment disorder.

43.     It follows the applicant’s story “fits” the SoP in respect of adjustment disorder. Does it fit the SoP in respect of depressive disorders as well? We are satisfied it does. The applicant had a clinically significant psychiatric condition (adjustment disorder) within two years immediately before the clinical onset of depressive disorder. We have already observed it is not possible to be precise when the adjustment disorder evolved into the depressive condition, but that does not matter. The medical evidence makes it clear the applicant’s psychiatric condition has continued without a break since his service in Vietnam, even though the formal diagnosis might have changed and his symptoms might have varied in intensity. Whenever the diagnosis of depressive disorder was made, it was immediately preceded by the condition from which it evolved. Factor 5(c) of the SoP is therefore inevitably satisfied.

44.     The last step in the Deledio process is fact finding. We are satisfied the applicant was a truthful witness. We do not think the substance of his story in relation to his dealings with the caskets or his symptoms has been undermined by any evidence led by the respondent. We accept the facts outlined in the introduction to these reasons.

conclusion

45.     The decision under review is set aside. We find the applicant suffered from adjustment disorder with depressed mood, which evolved into (his current) depressive disorder. That condition is attributable to the applicant’s eligible service. The date of effect is 2 May 2002.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe and Dr Kennedy, Member.

Signed:         Sam J Appleton
  Associate

Dates of Hearing  17 February 2005

18 February 2005
Date of Decision  3 March 2005

The applicant was represented by Mr Harding of counsel.

The respondent was represented by Mr Williams.