Saunders and Repatriation Commission
[2011] AATA 676
•29 September 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 676
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3412
GENERAL ADMINISTRATIVE DIVISION ) Re Colin Saunders Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Senior Member A K Britton Date 29 September 2011
Place Tamworth
Decision The decision under review is affirmed. .....................[sgd].........................
Senior Member A K Britton
CATCHWORDS
VETERANS’ ENTITLEMENTS – pensions – incapacity – war-caused disease - Generalised Anxiety Disorder – absence of diagnosis – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) – ss 5D, 13, 19(5C), 19(9), 120, 120A
OTHER INSTRUMENTS
Statement of Principles concerning Anxiety Disorder No. 101 of 2007
Guide to the Assessment of Rates of Veterans’ Pensions
REASONS FOR DECISION
Senior Member A K Britton 1.Mr Colin Saunders served in the Australian Army during the Vietnam War. He claims he now suffers from a “war-caused” psychiatric condition — “Generalised Anxiety Disorder”.
2.Mr Saunders applies to the Administrative Appeals Tribunal for review of the Veterans’ Review Board decision that, while he suffered from Generalised Anxiety Disorder, it was not “war-caused”.
3.The key issues to be determined in this review are whether Mr Saunders suffers from a Generalised Anxiety Disorder or other psychiatric condition and, if so, whether it was “war-caused”.
Statutory Framework
4.Section 13 of the Veterans’ Entitlements Act 1986 (Cth) (the Act) provides that where a veteran is incapacitated from a “war-caused disease”, the Commonwealth will be liable to pay a pension by way of compensation to the veteran.
5.“Disease” is defined by s 5D of the Act to mean:
(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
(d) a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
6.If found that Mr Saunders suffers from a Generalised Anxiety Disorder or other form of mental ailment or disorder, it will be necessary to decide whether that condition was “war-caused”. As Mr Saunders claims that his condition was the result of “operational service” rendered between 12 May 1970 and 31 March 1971, “the standard of proof” to be applied is as prescribed by ss 120 and 120A of the Act.
Generalised Anxiety Disorder
7.Mr Saunders contends that he suffers from a Generalised Anxiety Disorder as defined by Statement of Principles no 101 of 2007 (the SoP) concerning “anxiety disorder”. The parties agree that there is no material difference between that definition and that contained in DSM-IV (Diagnostic and Statistical Manual of Mental Disorders: DSM-IV-TR, 4th ed, Washington DC, American Psychiatric Association, 2000). The SoP defines a “generalised anxiety disorder” to mean:
… a psychiatric disorder (derived from DSM-IV-TR) with the following features:
A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:
(1) restlessness or feeling keyed up or on edge
(2) being easily fatigued
(3) difficulty concentrating or mind going blank
(4) irritability
(5) muscle tension
(6) difficulty falling asleep or staying asleep; and
D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;
Background
8.Mr Saunders was conscripted to serve in the Australian Army when he was 20 years of age. When he completed national service he volunteered to join his battalion in Vietnam, where he served for a further 10 and a half months.
9.According to Mr Saunders, while in Vietnam he was “hyper-vigilant”, “nervy” and “switched on all the time”. On his account, he was fearful that he might be killed the entire time. He gave evidence about a number of incidents where he thought his life was in immediate danger.
10.On return from Vietnam, Mr Saunders resumed work with the NSW Railways. He was promoted to the position of driver in 1980 and remained with the Railways until retired on medical grounds in March 2006 on account of a heart condition.
11.According to Mr Saunders, he returned from Vietnam “a changed man” and was anxious and worried about “every little thing”. He gave, as examples, his:
·“Compulsive” habit of locking all doors and windows at night — a habit he claims continues to this day;
·Habit of constantly checking his back pocket for his wallet — a habit which he says developed in Vietnam where, he contends, pick-pocketing was rife;
·Reluctance to leave his local area. He says on his return from Vietnam he found visiting cities, or even large regional towns, daunting. He says he now rarely ventures out of the small village where he lives (population 1500) and only if this cannot be avoided. He claims that while he has always lived in rural Australia, he had not been reluctant to travel before he went to Vietnam; and
·Punctuality. On his account, he endeavours to be at least 20 minutes early for all appointments.
12.Mr Saunders claims that on his return from Vietnam he was drinking heavily and that this continued until 2000 when he gave up alcohol. He attributes this alcohol to his service in Vietnam and believes it to have been a major contributing factor to the breakdown of his 17-year marriage. He claims that before he gave up drinking, he had been the “life of the party” and now largely avoids social gatherings.
13.Mr Saunders had an exemplary employment record with the Railways. He believes that his colleagues saw him as a person who had a tendency to worry excessively. He said they taunted him about his habit of methodically checking equipment before use and double checking paper work. He says his colleagues had a much more relaxed attitude to their work.
14.Mr Saunders claims that for “some time” he has attempted to structure his life in such a way to enable him to lead a quiet and uncomplicated existence. To achieve this end, among other things, he rents a modest apartment despite being able to purchase a house; has not entered a new relationship since his divorce in 1994; has a small circle of friends; seldom leaves the village where he lives; and virtually never goes on holidays. He says that, apart from his children and grandchildren, he has little contact with people.
Medical history
15.On enlistment, Mr Saunders was a healthy young man with no psychiatric history. During his discharge medical examination, he was found to have an extremely high blood pressure reading (210/90) and a pulse rate of 120. In a letter to Army physician Dr Dight, the referring medical officer wrote “anxious +++ after rest and reassurance”. In a clinical note dated 15 April 1971, Dr Dight wrote “mild systolic hypertension ? due to anxiety Could be early phase of Hypertension”. An ECG confirmed that Mr Saunders suffered from hypertension.
16.Shortly after discharge, Mr Saunders was seen by his family doctor who confirmed the diagnosis of hypertension. He was prescribed Inderal, which he continues to take to this day (currently 20 mg daily). Inderal is used to control blood pressure — a symptom of hypertension.
17.Mr Saunders has never sought nor received treatment for any anxiety-type condition. Nor has he reported any physiological symptoms to any of his treating doctors.
Medical opinion
18.Three psychiatrists have assessed Mr Saunders in the context of his claim: Drs Kevin Helme, John Roberts and Kipling Walker. All prepared written reports. Drs Helme and Roberts also gave oral evidence. Dr Helme was the only expert to conclude that Mr Saunders suffered from any form of psychiatric condition.
19.In a report dated 13 December 2006, prepared at the request of the Repatriation Commission, Dr Walker wrote that Mr Saunders reported that he “did not feel too bad”; was not persistently depressed; and denied panic attacks, morbid fears, recurring dreams of traumatic attacks or generalised worries that were difficult to control.
20.Dr Walker noted that while Mr Saunders experienced panic attacks and nightmares on return from Vietnam that which he thought were probably service-related, by the mid-1970s they had stopped. According to Dr Walker, Mr Saunders did not have “persistent signs” of depression or anxiety or any psychological problem.
21.The Commission also referred Mr Saunders for assessment by Dr Roberts. He concurred with Dr Walker’s opinion that Mr Saunders did not suffer from a psychiatric condition. He took a history of Mr Saunders “feeling nervous in Sydney and Tamworth” [the closest regional town to where he lived] and “generally feeling apprehensive on new ground”. He wrote that in interview Mr Saunders had not volunteered any problems in regard to nervousness, tension, anxiety or depression and that only when asked leading questions did he state that he felt anxious in unfamiliar places.
22.Dr Roberts thought it relevant that Mr Saunders did not experience any of the “physiological concomitants” of anxiety. In his opinion, Mr Saunders had not “one physical symptom of heightened anxiety” which would be expected in a post-traumatic stress disorder or Generalised Anxiety Disorder. He thought Mr Saunders’s presentation to be “entirely unremarkable” and found nothing in terms of his mood, affect or thoughts to suggest any abnormality.
23.Dr Helme interviewed Mr Saunders on three occasions between April 2008 and May 2009. In a report dated 6 October 2009, he wrote that Mr Saunders suffered from a “mild to moderate” Generalised Anxiety Disorder. When questioned about the absence of any reference to DSM-IV in any of the reports he had prepared, Dr Helme said that in reaching his diagnosis he would have applied DSM-IV’s diagnostic criteria for Generalised Anxiety Disorder.
24.In Dr Helme’s opinion, Mr Saunders presented during interview as an “anxious man”. In contrast to Dr Roberts, Dr Helme found that Mr Saunders displayed symptoms of “excessive anxiety”, noting his report of excessive worry and anxiety and of waking early and worrying about the day ahead on most days.
25.According to Dr Helme, while Mr Saunders’s condition did not appear to have adversely impacted on his employment, it had probably interfered with his social relationships. He noted that while Mr Saunders appeared to have maintained a good relationship with his children, he thought his condition had probably interfered with his relationship with his wife and friends. He thought his “reduced lifestyle” and limited social interaction was probably the result of his anxiety with social interaction. Similarly, he thought his long history of alcohol abuse was probably an attempt to self-medicate his anxiety.
Effect of beta-blockers
26.Mr Saunders has been taking Inderal on prescription since shortly after his discharge from the Army. A “beta-blocker”, Inderal is used to treat hypertension and acts by reducing the effects of adrenaline and other stress hormones and modifying the "fight or flight" response.
27.Dr Helme stated that while he never prescribed beta-blockers to treat a patient suffering from with anxiety, he is aware that it is used by some people to “steady their nerves” in situations where they anticipate that might experience symptoms of heightened anxiety, such as making a public presentation.
28.Drs Helme and Roberts agree that beta-blockers mask some of the physiological symptoms some people experience when they are anxious — tremors, sweaty palms and raised blood pressure. Dr Roberts, however, was at pains to emphasise that beta-blockers mask the physical, not the psychological, symptoms of anxiety.
Does Mr Saunders suffer from Generalised Anxiety Disorder?
29.Whether Mr Saunders suffers from a Generalised Anxiety Disorder must be determined to my reasonable satisfaction (s 120(4)). Neither party bears an onus of proof (s 120(6)). That assessment is to be made in relation to the period commencing on the day on which Mr Saunders’s initiating claim was lodged – 11 July 2006 — and ending on the day his claim is determined (“the assessment period”): ss 19(5C) and 19(9) of the Act.
30.It is argued for Mr Saunders that while his condition is probably towards the mild end of the scale, he nonetheless meets the criteria for Generalised Anxiety Disorder set out in the SoP. It is argued that, in making that assessment, it is critical that proper regard be given to the masking effects of beta-blockers.
31.The SoP defines Generalised Anxiety Disorder to mean a condition which meets six diagnostic features. For the reasons that follow, I am satisfied that Mr Saunders does not meet three of those features. Given that all diagnostic features must be met, in these reasons I have not considered the remaining criteria.
Criterion B:
B. The person finds it difficult to control the worry
32.As is apparent, this criterion is highly subjective and does not lend itself to objective measurement. The following passage from DSM-IV provides some guidance as to its meaning:
The intensity, duration, or frequency of the anxiety and worry is far out of proportion to the actual likelihood or impact of the feared event. The person finds it difficult to keep worrisome thoughts from interfering with attention to tasks at hand and has difficulty stopping the worry. Adults with Generalized Anxiety Disorder often worry about everyday, routine life circumstances such as possible job responsibilities, finances, the health of family members, misfortune to their children, or minor matters (such as household chores, car repairs, or being late for appointments).
33.While Mr Saunders testified that he has a tendency to worry about “every little thing”, his answers to questions in these proceedings and the history taken by Drs Helme and Roberts was not suggestive of a person who found it “difficult to control that worry”. In evidence, when asked to nominate an example of having difficulties controlling his worries, the sole example Mr Saunders was able to provide was his concerns for his eldest grandchild, a pre-schooler who he described as a “bit of an adventurer”. According to Mr Saunders, twice –possibly three times– per week, he worried that the child might be injured or in danger; he never acted on these concerns; and these thoughts lasted for no more than 10 minutes.
34.This example, in my opinion, is not suggestive of worries that are disabling, especially intrusive, frequent or intense.
35.Dr Helme could not recall whether Mr Saunders reported that he had difficulty controlling his worries. Dr Roberts was of the opinion that there was no evidence of Mr Saunders being unable to control his worry. The flavour of Mr Saunder’s evidence is that, by leading a reduced lifestyle, he had successfully minimised his worries. In my view, the evidence does not support a finding that Mr Saunders “finds it difficult to control the worry”.
Criterion C:
C. The anxiety and worry are associated with three or more of six symptoms, with at least some symptoms present for more days than not during the previous six month period:
36.For the purpose of this criterion, the relevant period commences six months before Mr Saunders made his claim, that is, 11 January 2006, and concludes at the end of assessment period (the relevant period). To satisfy this criterion, the anxiety and worry must be associated with at least three or more of the following symptoms and at least some must be present more days than not.
37.(i) Restlessness or feeling keyed up or on edge: Mr Saunders testified that he felt on edge throughout the entire period he served in Vietnam and often while he was working. He said that since leaving work, he felt “on edge” while driving in traffic and startled easily, for example, when the phone rang.
38.On the evidence before me, I am not reasonably satisfied that Mr Saunders experienced these symptoms for more days than not for at least six months during the relevant period. Even if assumed that these symptoms were present more often than not while Mr Saunders was employed, he was employed for only about ten weeks of the relevant period.
39.(ii) Being easily fatigued: There is no evidence and nor is it suggested that Mr Saunders became easily fatigued throughout the relevant period.
40.(iii) Difficulty concentrating or mind going blank: According to Mr Saunders, towards the end of his period of employment with the Railways he sometimes found it difficult to concentrate, especially around exam time. The only example Mr Saunders could recall of finding it difficult to concentrate in the period since leaving employment was an incident when he had been asked why he had not attended a school reunion and found that his “mind just went blank”.
41.Dr Helme did not comment on Mr Saunders’s ability to concentrate. Dr Roberts saw no evidence of Mr Saunders having difficulties with concentration.
42.I could not be reasonably satisfied that this symptom was present for more days than not for at least six months throughout the relevant period.
43.(iv) Irritability: In a statement prepared for these proceedings, Mr Saunders described himself as being quite irritable with some people. In oral evidence, the only example he was able to proffer was a recent incident where he had an argument with a fellow volunteer on a community project, and decided to leave the project.
44.Even if accepted that there was evidence of Mr Saunders experiencing symptoms of irritability for at least six months during the relevant period, I could not be satisfied that this symptom was present for more days than not during that period.
45.(v) Muscle tension: The only evidence of Mr Saunders experiencing muscle tension throughout the relevant period is Dr Helme’s observation of Mr Saunders clutching his fist during interview while recounting distressing memories during service, recorded in his report dated 6 October 2009. I am not reasonably satisfied that Mr Saunders suffered from muscle tension for at least six months throughout the relevant period.
46.(vi) Difficulty falling asleep etc. … : Mr Saunders’s evidence is that he usually goes to bed at around 8.30 pm and wakes between 5 and 5.30 am. He said that he had been in the habit of waking early before he went to Vietnam. He testified that he had no difficulty getting to sleep but sometimes, when disturbed by a truck or the like, he would churn over the events of the day ahead and found it difficult to get back to sleep.
47.While there is some evidence that Mr Saunders sometimes had difficulty staying asleep at night for at least six months of the relevant period, I am not reasonably satisfied that this occurred more days than not.
48.Summary: I am not satisfied that Mr Saunders satisfies Criterion C.
Criterion E:
E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning
49.There is no evidence and nor is it suggested that Mr Saunders has ever suffered from clinically significant distress or impairment in occupational functioning. He contends however that his symptoms of excessive anxiety and worry have impaired his social functioning. In support, he points to the absence of any new relationship after the end of his marriage; his avoidance of social functions and large groups of friends.
50.Mr Saunders enjoys a good relationship with his children and grandchildren. Apart from the recent incident with a fellow volunteer, there is no evidence of Mr Saunders having difficulties in his social relationships. While he has few friends, there is no evidence that his relationship with any of them is dysfunctional. It goes without saying that human behaviour is complex and there may be many reasons why a person such as Mr Saunders remains single, avoids social gatherings and has a small group of friends. They are not necessarily features of impairment or dysfunctional relationships.
51.Dr Roberts found no evidence of social impairment. In his second report, Dr Helme provided an assessment of Mr Saunders under the Guide to the Assessment of Rates of Veterans' Pensions ('GARP') — a legislative instrument used to determine incapacity for the purpose of assessing a rate of disability pension. In making that assessment Dr Helme awarded Mr Saunders a score of one – “Occasional friction with family members” under Table 4.5 of GARP – Domestic Situation; a score of three – “significant reduction in social interaction” under Table 4.6 – Social Interaction; a score of three – “Significant reduction in recreational activities” under Table 4.7 – Leisure Activities. It is unclear to me on what basis Dr Helme has concluded that there has been a reduction in Mr Saunders’s social interactions or recreational activities.
52.On the evidence before me, I could not be satisfied that Mr Saunders’s social functioning has been impaired at any time throughout the assessment period.
Conclusions
53.Mr Saunders does not satisfy three of the diagnostic criterion of Generalised Anxiety Disorder. In reaching that conclusion, I have had regard to his submission about the “masking effects” of beta-blockers. Implicit in that submission is the proposition that “but for” the use of beta-blockers, Mr Saunders would satisfy each of the diagnostic criterion. The flaw in that argument is the assumption that each criterion relates to physiological symptoms. There is no evidence, however, that beta-blockers might play a role in relation to Criterion 3, Social Impairment. A further difficulty with this submission is that, at best, the evidence establishes that beta-blockers could mask some of the physiological symptoms of anxiety. As properly conceded for Mr Saunders, it is not possible to reliably determine which (if any) symptoms he would suffer were it not for his use beta-blockers.
54.In assessing whether Mr Saunders satisfies the diagnostic criteria for Generalised Anxiety Disorder, I have given careful considered to the opinion given by Dr Helme who, unlike the other experts, had the advantage of assessing Mr Saunders on three occasions. A close examination of his reports and oral evidence suggests that he did not address each of the diagnostic features set out in the SoP or, if he did this, he failed to state the factual assumptions on which his findings in respect of each criterion were based. While I accept that he is of the opinion that Mr Saunders presents as an anxious man, I find myself unable to prefer his opinion over that of Drs Roberts and Walker.
55.In reaching this conclusion, I have not treated as determinative Mr Saunders’s failure to report any psychological problems or seek psychiatric treatment. As is a matter of common knowledge, psychiatric illness is notoriously underreported within the community.
Does Mr Saunders suffer from some form of psychiatric condition?
56.Drs Roberts and Walker were of the opinion that Mr Saunders did not suffer from any psychiatric condition. Dr Helme found no evidence of a depressive or psychotic illness. He made no other diagnosis apart from a Generalised Anxiety Disorder.
57.The assessment of whether a person suffers from a “mental ailment” is notoriously difficult because of the broad spectrum of so-called “normal” behaviour and experience and the absence of any reliable objective measure to determine whether a person suffers from such an ailment. It may be, as Mr Saunders believes, that he now experiences a higher level of anxiety than he did before he served in Vietnam. It may also be that while he was employed at the Railways, he experienced greater levels of anxiety than his colleagues. The issue, however, that I must decide is whether he meets the diagnostic criteria set out in DSM-IV, or some other authoritative text, of a recognised psychiatric condition. While some evidence to indicate that Mr Saunders experiences some symptoms consistent with an anxiety-type disorder, in my opinion there is insufficient evidence to establish that he fulfils the diagnostic criteria of any psychiatric condition. Therefore, on the material before me, I am unable to conclude that Mr Saunders suffers from a mental ailment or disorder.
58.It follows that I must affirm the decision under review.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton
Signed: ...........................[sgd].........................................
Associate to Senior Member A K BrittonDate/s of Hearing: 17 and 18 August 2011
Date of Decision: 29 September 2011
Solicitor for the Applicant: Ms M. Bott, Newman & PengilleyRepresentative for the Respondent: Mr T O'Reilly, Department of Veterans' Affairs
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