Rudd and Repatriation Commission
[2005] AATA 1306
•23 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1306
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2005/237
VETERANS’ APPEALS DIVISION )
)Re FRANK RUDD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr M. E. Thorpe, Member Date23 December 2005
PlaceSydney
Decision The decision under review is affirmed. [SGD] Dr M. E. Thorpe
Member
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – operational service during World War 2 - disability pension – post traumatic stress disorder – no diagnosis - decision affirmed.
Veterans’ Entitlements Act 1986 – ss. 120
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Cooke (1998) 90 FCR 307
REASONS FOR DECISION
23 December 2005 Dr M. E. Thorpe, Member 1. This is an application by Mr Frank Rudd for review of a decision of the Repatriation Commission dated 19 February 2004 which refused his claim for “PTSD/anxiety” and assessed his disability pension at 50% of the General Rate. The Repatriation Commission found that there was no medical condition present to answer the claim for “PTSD/anxiety”. This decision was affirmed by the Veterans’ Review Board (“VRB”) on 20 January 2005.
2. At the hearing, Mr Rudd was represented by Mr D. Reid, solicitor, and the Repatriation Commission by Mr N. Bunn of the Department of Veterans’ Affairs. Mr Rudd gave evidence, as did Drs Dinnen and Morris. I had before me the documents (“T-documents”) lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing.
BACKGROUND
3. Mr Rudd served in the Australian Army during World War 2 from 18 August 1943 to 25 March 1947. Because he served overseas during World War 2 in New Guinea and Bougainville, the whole of his service constitutes operational service for the purposes of the Veterans’ Entitlements Act 1986 (“the Act”). On 21 November 2003 he lodged a claim for “PTSD/anxiety” and “impotence”. The Repatriation Commission recorded a diagnosis of impotence, but found no medical condition present to answer the “PTSD/anxiety” part of his claim. Mr Rudd’s claim for impotence was accepted by the Repatriation Commission.
4. Mr Rudd subsequently sought a review from the VRB. On 20 January 2005 the VRB affirmed the decision of the Repatriation Commission.
ISSUES BEFORE THE TRIBUNAL
5. At the beginning of the hearing, Mr Reid advised the Tribunal that Mr Rudd will not be pursuing his claim for general anxiety disorder, but only post traumatic stress disorder (“PTSD”). Mr Bunn advised that the Repatriation Commission contests only the diagnosis of Mr Rudd’s claim for PTSD and conceded that, should such a diagnosis be found, the relevant Statement of Principles (“SoP”) would be satisfied. The Tribunal accepts that this concession is appropriate.
6. The issues before the Tribunal are as follows:
·Whether Mr Rudd has a psychiatric illness; and
·If so, the diagnosis of that illness.
7. The date of effect, should Mr Rudd be successful in his claim, is 21 August 2003.
THE EVIDENCE OF THE APPLICANT
8. Mr Rudd served in the Australian Army from 1943 to 1947 and said that he did not have a lot of contact with the Japanese. On one occasion, he told the Tribunal, he was on a track behind the forward scout who had an Owen gun. The scout spotted Japanese soldiers, he dived behind a pile of dirt and the Japanese soldiers fired at him. He was wearing earphones and when he went to escape the wires became entangled, requiring him to cut the wires with his bayonet. He was then able to get out. He said he was scared and thought that he was going to die. One and a half to two weeks later he did not go with his group on another exercise, using the excuse that his left eye was crooked and he needed another pair of glasses. He felt terrible about not going but he was not going to lose his life for anyone. He said he did this at the time because he was scared, but now considers it to have been a cowardly act.
9. Two other events were recounted by Mr Rudd, including finding a dead Japanese on the ground with two flies on his face and another occasion where he was present when an Australian soldier was struck on the head and killed.
10. Mr Rudd said that he did not have any work problems subsequent to discharge, has a good circle of friends and gets along well with his family. Alcohol is not a problem. Initially he had some difficulty sleeping but now he sometimes has trouble going to sleep. He had occasional recollections about his war service, about once every three months but not now. He also initially had dreams or possibly nightmares which went away. He does not watch war movies, does not talk a lot, does not attend Anzac reunions, is active in the bowling club and is a member of the North Ryde RSL.
11. Mr Rudd’s evidence was that the memories of what had happened had gone out of his system and had only returned when talking about them with respect to this current application. His attendance at the St John of God Medical Centre to see Dr Smith “started him off again”.
12. In Mr Rudd’s Claim for Disability Pension lodged on 21 November 2003, the listed disability was “PTSD/Anxiety”, the signs and symptoms were listed as “a constant feeling of anxiety, mood swings and depression”, and it was recorded that it was “causally related to incidents of stress and trauma on war service involving serious injury and death”. The document indicated that he first became aware of the signs and symptoms of the disability or aggravation of the disability in 1944. Mr Rudd had signed the claim form but the writing on the application appears to be different to his signature and at T7/23, at the completion of the Lifestyle Rating, Mr Rudd indicated that John Casey of the RSL Sub Branch NSW had helped him complete the form. The Medical Practitioner section of the Claim for Disability Pension was not completed by any medical practitioner.
THE MEDICAL EVIDENCE
13. Mr Rudd has been assessed by four psychiatrists: Dr Selwyn Smith, Dr Karl Koller, Dr Anthony Dinnen and Dr Patrick Morris, and all consultations were subsequent to his application for disability pension.
14. On 9 January 2004 Dr Smith reported that Mr Rudd did report exposure to adverse experiences in his military service and the emotional sequelae associated with those experiences were, in his opinion, a normal variance. He did not consider that Mr Rudd developed any formal psychiatric disorder as a result of his military service and he found no diagnostic evidence of a generalised anxiety disorder or PTSD. Any GARP impairment he would attribute to the emotional symptomatologies arising from symptoms linked to his advancing years and declining physical health and associated restrictions in his activities.
15. On 19 April 2004 Dr Koller recorded that Mr Rudd had complaints of:
1. Sleep disorder, “it takes me a long time to go to sleep and then I wake up”.
2. “I do have some dreams, I wake up and start thinking about the Army, it’s not as bad as it was”.
3. I am a worrier, I worry about things, I get anxious about things, I get nervous at times”.
4. “I do get irritable, I try to be placid”.
5. “I get tense, I get a pain at the back of my head”.
6. “Impotence, cannot sustain an erection over the past 3 or 4 years.
Dr Koller diagnosed a generalised anxiety disorder and a suggestion of an aspect of PTSD. The complaints that Dr Koller elicited to come up with his diagnosis were very different to complaints (symptoms) provided by Mr Rudd to the Tribunal, and the history obtained by Dr Smith, apart from the impotence. That is, Dr Koller's history was at variance to other histories before the Tribunal.
16. Dr Dinnen saw Mr Rudd on 3 May 2005 and concluded that the nature of the condition is unfortunately one which does not easily satisfy diagnosis by slide rule. Dr Dinnen opined that trying to fit Mr Rudd’s clinical presentation with himself, Dr Koller and Dr Smith into a neat diagnostic label was not an easy task, particularly where the symptoms are those which change and emerge as a consequence of repeated enquiry as to service experiences. It was his view that that PTSD was the appropriate diagnosis causing minimal to slight disability.
17. Dr Morris saw Mr Rudd on 16 May 2005 and was not of the opinion that Mr Rudd had any formal psychiatric diagnosis according to diagnostic criteria from the Diagnostic and Statistical Manual, 4th Edition, American Psychiatric Association, 1994. Dr Morris did not make a diagnosis of chronic PTSD or generalised anxiety disorder and was in general agreement with the findings and diagnostic opinion given by Dr Selwyn Smith in his report dated 9 January 2004. Dr Morris also reported that Mr Rudd takes Ditropan for prostate enlargement to decrease his urinary frequency and he put Mr Rudd’s sleep problems down to his urinary problems.
STANDARD OF PROOF
18. Section 120(4) of the Act provides:
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
19. In Benjamin v Repatriation Commission (2001) 70 ALD 622, the Full Federal Court found at page 634:
When the commission, or the tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s 120(4) of the Act: see Repatriation Commission v Budworth (2001) 116 FCR 200 at 204, [15]; 66 ALD 285 at 289. The first question for the tribunal will be how to characterise the psychiatric problems exhibited by the veteran. If the tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4).
20. Thus, the issue of whether an injury or disease exists, is to be decided to the reasonable satisfaction of the decision maker, that is, on the balance of probabilities: Repatriation Commission v Cooke (1998) 90 FCR 307.
CONSIDERATION
21. I do not consider Mr Rudd to have any psychiatric illness. The list of complaints proffered by Dr Koller is not in keeping with the history Mr Rudd provided at the hearing and to other doctors. Dr Koller was alone in his diagnosis of generalised anxiety disorder. Excess worry and anxiety has not been a feature of Mr Rudd’s history, apart from Dr Dinnen opining that Mr Rudd harboured great anxiety as a consequence of his perceived cowardice in the face of enemy activity and that self recrimination through the years may have taken a toll. Dr Dinnen is the only doctor to proffer this opinion. Even if the Tribunal were to accept Dr Koller’s diagnosis of generalised anxiety disorder, Mr Rudd does not satisfy the two year qualification period as required by the SoP, from the time of the severe stressor. The only evidence in support is the notation of the year of onset in the original claim as “’44”, which is not supported by the evidence or the other doctors or Mr Rudd. I am aware that Mr Rudd does harbour some guilt around this event but in simple language his colleagues harboured no resentment and Mr Rudd came good and although at times anxious, continued in active service.
22. It is difficult to relate any sleep disturbance to anything other than his prostate problems. Difficulty falling asleep is a not uncommon problem in older people.
23. Neither Dr Morris nor Dr Smith considers Mr Rudd to have any psychiatric illness and as such there is no diagnosis of illness. I agree with these two psychiatrists that advancing years and declining physical health and associated restrictions of activity contribute to his emotional symptomatologies.
24. In addition I am mindful that this current application for Disability Pension requires the diagnosis of a psychiatric illness in an elderly man who has not previously seen a psychiatrist or a psychologist. I have difficulty with his application for Disability Pension, in that it was not supported by a medical practitioner, he was assisted with the filling out of the form and he had not at that time ever sought medical advice or assistance for the claimed condition. Dr Dinnen, who diagnosed PTSD causing minimal or slight disability, reported that Mr Rudd appeared to settle down well after he returned from service and that he coped well by suppressing and denying any distressing thoughts or memories consequent to that service until it was reactivated. He further opined that it was difficult to fit Mr Rudd into a neat diagnostic label, particularly where the symptoms are those which change and emerge as a consequence of repeated enquiry as to service details. It is my view that the events surrounding this application have to be taken in the context of a man who has coped very well since discharge and that the two psychiatrists consider there is no psychiatric illness. Dr Koller alone diagnosed generalised anxiety disorder and Dr Dinnen diagnosed minimal PTSD triggered by recent examinations and rekindled memories of war service. The problem for Dr Dinnen is that his diagnosis has difficulties satisfying the requirements of the DSM-IV-TR Plus for PTSD.
25. Mr Reid submitted that the DSM-IV-TR Plus requirements to diagnose PTSD were satisfied. Mr Bunn submitted that C and D were not satisfied. I agree with Mr Bunn that C is not met. One could debate C(2) but to satisfy “persistent avoidance” requires three of the requirements are satisfied. I also agree with Mr Bunn that D (“persistent symptoms of increased arousal”) is not met. D(1) is not satisfied as his sleep is punctuated by urinary problems and it is not unusual having trouble falling asleep; there is no substantive history of irritability or outbursts of anger to satisfy to satisfy D(2). If C and D are not satisfied E cannot be satisfied. Also I agree with Mr Bunn that F (“the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning”) is not satisfied. Dr Morris in his report went to some trouble to pursue the requirements in the DSM-IV-TR Plus to explore a possible diagnosis of PTSD and whilst satisfied that Mr Rudd fulfilled criteria A for the diagnosis he failed to satisfy the other criteria.
26. Mr Rudd is now 82 years of age and had a lot of stress related to family health matters, which was improving until his son developed melanoma. His failure to satisfy the diagnostic criteria of the DSM-IV-TR Plus, together with the majority of the psychiatrists finding no psychiatric illness, only Dr Dinnen finding PTSD resulting in minimal or slight disability, and Dr Koller obtaining a history not consistent with that history given by Mr Rudd and the histories obtained by the other doctors, effectively excludes PTSD. Dr Koller is alone in his diagnosis of generalised anxiety disorder and again this appears to be related to his history which is at variance with all other practitioners and Mr Rudd, and even if the diagnosis was accepted as correct, it would not satisfy the SoP requirement of the clinical onset being within two years of the stressor.
27. In conclusion, I have decided, to my reasonable satisfaction, that Mr Rudd does not have a psychiatric illness and there is therefore no diagnosis to be made.
28. Having decided there is no injury or disease as a result of there being no psychiatric illness, it is not necessary to consider whether there is a SoP in force in respect of the injury or disease, and the application is not successful.
DECISION
29. The decision under review is affirmed.
I certify that the preceding 29 paragraphs are a true copy of the decision and reasons for decision of Dr M. E. Thorpe, Member:
Signed: A. Garcia
..................................................................................……………………………….Associate
Date of Hearing 21 November 2005
Date of Decision 23 December 2005
Solicitor for the Applicant Mr D. Reid
Advocate for the Respondent Mr N. Bunn
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