Schlegel and Repatriation Commission

[2008] AATA 1039

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1039

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2007/0011

VETERANS AFFAIRS  DIVISION		)
Re		ROMAULD SCHLEGEL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr S. Webb, Member
Dr M. Miller AO

Date20 November 2008

PlaceCanberra

Decision The decision under review is affirmed.

.............[Signed].................................

Mr S. Webb, Presiding Member

CATCHWORDS

VETERANS' ENTITLEMENTS - operational service in Vietnam - claim for war-caused post traumatic stress disorder - diagnosis of PTSD not established - Generalised Anxiety Disorder – hypothesis of connection to service not consistent with Statement of Principles – Disorder not arising from or related to service - decision affirmed

Veterans' Entitlements Act 1986 ss 9,13, 119, 120, 120A

Repatriation Commission v Warren [2008] FCAFC 64
Peacock v Repatriation Commission (2007) 161 FCR 256
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Deledio (1998) 83 FCR 82

Mines v Repatriation Commission (2004) 86 ALD 62
Masliczek v Repatriation Commission [2008] FCA 1535

Repatriation Commission v Bey (1997) 79 FCR 364
Dunlop v Repatriation Commission [2003] FCAFC 201.
East v Repatriation Commission (1987) 16 FCR 517

Connors v Repatriation Commission (2000) 59 ALD 61

Gorton v Repatriation Commission [2001] FCA 286.
Lees v Repatriation Commission [2002] FCAFC 398.

REASONS FOR DECISION

20 November 2008 Mr S. Webb, Member
Dr M. Miller AO     

1.      Romauld Schlegel was called up for National Service and served in Vietnam. He lodged a claim for a disability pension, asserting that he suffered from Post Traumatic Stress Disorder that was war-caused. This aspect of his claim was rejected. It was found that he suffered from Generalised Anxiety Disorder that was not war-caused. Mr Schlegel is unhappy with that decision, as affirmed by the Veterans’ Review Board, and he has applied for review.

2.      Prior to the hearing, the Tribunal was provided with a copy of a document purportedly setting out facts that had been agreed by the parties and issues that were in dispute. In that document it appeared that the parties agreed that Mr Schlegel “suffers from Generalised Anxiety Disorder with Depression”. At the outset of the hearing Mr Schlegel’s representative, Mr John Orr of Capital Lawyers, informed the Tribunal that no claim was pressed in relation to any condition, including Generalised Anxiety Disorder, other than PTSD. Mr Orr purported to qualify this by stating that any sequellae of PTSD is pressed as war-caused. As it appears to us, Mr Orr’s purported concessions were not clearly comprehensible or helpful. These matters were put to Mr Orr and he withdrew any concession concerning the diagnosis of Generalised Anxiety Disorder.

3. In these circumstances, being mindful of the settled authorities concerning concessions in veterans’ matters such as this,[1] and in fairness to Mr Schlegel, we are not prepared to accept and will not proceed on the basis of any concession proffered by Mr Orr concerning the diagnosis or war-causation of any psychiatric condition Mr Schlegel is found to suffer. We will proceed to consider the psychiatric symptoms and problems about which Mr Schlegel has complained and will determine whether or not these symptoms and problems are a disease that is war-caused.[2]

[1] See Repatriation Commission v Warren [2008] FCAFC 64 at [78]; Peacock v Repatriation Commission (2007) 161 FCR 256 at [23].

[2] Benjamin v Repatriation Commission (2001) 70 ALD 622, 633-634.

4.      Mr Schlegel’s application rises for consideration pursuant to the Veterans’ Entitlements Act 1986 (“the Act”). The Commonwealth is liable to pay a pension by way of compensation to a veteran in relation to a war-caused incapacity in accordance with the Act.[3]  A disease contracted by a veteran will be a war-caused disease if, inter alia, it arose out of or was attributable to any eligible war service rendered by the veteran.[4] The standard of proof that is to be applied when deciding whether a disease is war-caused is set out at s.120 of the Act.

[3] Veterans’ Entitlements Act 1986 s 13.

[4] Veterans’ Entitlements Act 1986 s 9.

5.      The issues before the Tribunal are:

(a)the period of Mr Schlegel’s operational service;

(b)the diagnosis of the psychiatric condition, if any, from which he suffers;

(c)whether any such condition is war-caused, and for that purpose:

(i)whether a hypothesis of war-causation of the diagnosed condition is raised on the material before us;

(ii)whether a Statement of Principles (SoP) concerning the diagnosed condition is in force;

(iii)if so, whether the raised hypothesis is consistent with the requirements of the SoP; and

(iv)if so, whether it is proved, beyond reasonable doubt, that the diagnosed condition is not war-caused; and

(d)if the diagnosed condition is war-caused, the rate of pension to which Mr Schlegel is entitled and the date of effect of any such decision.

period of Mr Schlegel’s operational service

6. Having regard to Mr Schlegel’s service records and the relevant section of the Act,[5] we are reasonably satisfied that the period of Mr Schlegel’s operational service, commenced on the date he departed from Australia for Vietnam and ended on the date he returned to Australia from Vietnam, that is from 22 October 1969 to 29 October 1970.[6]

[5] Veterans’ Entitlements Act 1986 ss 5B, 6C.

[6] T3 folio 4.

diagnosis of the psychiatric condition, if any, from which Mr Schlegel suffers

7.      Mr Schlegel says that he suffers from PTSD. He relies on diagnoses made by his treating psychiatrist, Dr Koller, and by Dr Altman, a consultant psychiatrist, and Dr Horsley, an SES Liaison Officer at the Department of Veterans’ Affairs. In Mr Schlegel’s submission he experienced a number of traumatic events during the period of his operational service in Vietnam, including an incident in which a non-commissioned officer (NCO) pointed a pistol at him during an altercation. This, he says, changed his life, causing him to feel isolated, irritable and distrusting of his peers, and to experience recurring nightmares. Mr Schlegel asserts that he pushed this incident out of his mind for many years, to the extent that he did not recall it until prompted by his wife in the context of consultations with Dr Altman. In Mr Schlegel’s submission, despite this, he obtained counselling from the Vietnam Veterans’ Counselling Service three or four times from 1980 to 1997, when he was referred to Dr Koller for psychiatric treatment. Mr Schlegel says that his condition has progressed and deteriorated over time. He says that the condition was initially considered to be PTSD by the Counselling Service, but was subsequently diagnosed as Generalised Anxiety Disorder with evolving features of PTSD by Dr Koller. In Dr Koller’s opinion, sometime after 2005 Mr Schlegel’s condition became “full blown PTSD”.

8.      We are not persuaded to that conclusion.

9.      Issues of diagnosis are to be determined on the reasonable satisfaction standard of proof.[7]

[7] Veterans’ Entitlements Act 1986 s 120(4); Benjamin v Repatriation Commission (supra), 634-635.

10.     As will appear, we are reasonably satisfied that Mr Schlegel suffers from psychiatric symptoms that warrant diagnosis as a Generalised Anxiety Disorder, and we so find. We are not satisfied that Mr Schlegel suffers from PTSD.

11.     There are several reports by Dr Koller in evidence. The Doctor treated Mr Schlegel from 2000. While Dr Koller gave oral evidence that he took a detailed history from Mr Schlegel, no such history is apparent in his initial report in 2000.[8] The Doctor gave oral evidence by telephone and was not able to confirm the history he took from Mr Schlegel by reference to clinical notes. In his first report Dr Koller did not report any diagnosis and did not refer to Mr Schlegel’s service and experiences in Vietnam, but referred to workplace stress: “The work situation and move was accompanied by considerable distress on the part of Mr Schlegel and this dominantly colours his presentation”.[9] Dr Lark observed in a report dated 24 November 2000 that “there is no indication from the report that Dr Koller has diagnosed, for example, major depression or post traumatic stress disorder”.[10] The report does not indicate the existence of a significant psychiatric problem.[11] Consistent with Dr Koller’s recommendation, Dr Lark stated that Mr Schlegel was fit to return to work in another department without restrictions.

[8] T7 folio 23.

[9] T7 folio 23.

[10] T5 folio 17.

[11] T5 folio 17.

12.     Doctor Lark sets out the background to Mr Schlegel’s psychiatric problems in 2000 in his report dated 27 October 2000. Dr Lark reported that Mr Schlegel has a history of anxiety disorder with panic attacks from 1998 in the context of difficulties and conflict in the workplace.[12] It is relevant to set out the following part of Dr Lark’s report:[13]

[12] T6 folio 19.

[13] T6 folios 20-21.

“Mr Schlegel is under the care of his family doctor Dr Kevin Gow and 3 counsellors. In relation to the counsellors, he has been seeing Neil Woodger from Davidson Trahaire, Mr Steve Parkes of the Vietnam Veterans’ Counselling Service, and also Mr Kevin Wallis of the Vietnam Veterans’ Counselling Service (in the absence of Mr Parkes I gathered). He had had the counselling initially in 1998. Counselling had recommenced in late August and this time involved the counsellors from the Vietnam Veterans’ Counselling Service as well.

Mr Schlegel has been referred to see consultant psychiatrist Dr Karl Koller in Sydney on 8 November [2000]. He has not seen Dr Koller previously.

Mr Schlegel has not been placed on any prescribed medications…

…

Mr Schlegel thought that the counsellors of the Vietnam Veterans’ Counselling Service attributed his current problems to stress and anxiety. In relation to his current health, he indicated that he was not feeling himself – that he felt tension and stress within himself. He indicated that he felt restrained and nervous, but that he was not usually like this. He used the words “terribly anxious” to describe his current state.

He felt that the current situation was much worse than the situation that had existed in 1998. He had been having difficulty settling the stress himself so had sought help from counsellors. He indicated that he had reached the stage at the end of August when he felt he could no longer cope. He indicated that he was normally an outgoing and vivacious person and that he wanted to get better – back to where he was.

He indicated that the slightest thing, e.g. any problems that needed resolving, pushed him over the edge, making him feel more tensed up. He indicated that he had previously been calm, methodical and rational.

In relation to some parameters of general health, Mr Schlegel felt that there had been no change in his appetite. He reported however that he had lost about 11/2 stone in weight over the last 2 months, though he might have put a little back on recently. (This amount of weight loss is certainly significant in the context of stress.) In relation to sleep he estimated that he was only getting 3 to 4 hours sleep at night. He indicated that he was not having difficulty getting to sleep but was waking frequently during the night with his mind active. He indicated that he was not having dreams or nightmares but was thinking about work. In particular he was thinking about how he might resolve the problems that had been created. He dated the problems with his sleep back to April this year, but particularly since August…

Mr Schlegel felt that he had improved since being off work. He finds that he is relaxing a bit more and that there has also been some improvement in his nightly sleep.”

13.     In a report dated 15 December 2000 Dr Gow, Mr Schlegel’s treating general practitioner since 1983, referred to anxiety and depression as a result of Mr Schlegel’s work situation and made no reference to any previous history of psychiatric problems.[14] Dr Gow was not called to give evidence. Mr Schlegel was examined by Dr Lucas, a consultant psychiatrist, in the context of a worker’s compensation claim against Comcare. It appears that Dr Lucas took a detailed history from Mr Schlegel, in which Mr Schlegel attributed his problems to difficulties in his employment: ”He said he was a positive person, considered somewhat of a joker and a good person to be with. He is someone who likes to move forward. Unfortunately the problems he has faced in his employment have made him the opposite – he is no longer a joker and is cranky and irritable and easily annoyed.”[15] Dr Lucas diagnosed an adjustment disorder with depressed and anxious mood, being a recurrence of the condition first diagnosed by Dr Stuart in 1998 in response to problems in his workplace.[16] At this time it appears that Mr Schlegel did not complain of any symptoms prior to 1998 or of any symptoms at all that he attributed to his service in Vietnam. Dr Lucas therefore formed no opinion in that regard.

[14] T9 folio 25.

[15] T10 folio 32.

[16] T10 folios 34 and 35; T17 folios 73-74 refer.

14.     In 2002 Mr Schlegel was examined by Dr White, a consultant psychiatrist. Dr White reported that Mr Schlegel “suffered significant anxiety when he was in Vietnam and developed an anxiety disorder which I would consider to be a Generalised Anxiety Disorder”.[17] Dr White did not consider that Mr Schlegel had a PTSD related to his service in Vietnam.

[17] T12 folio 38.

15.     In Dr Koller’s second report, dated 17 March 2004, he set out the history he obtained from Mr Schlegel, including a number of stresses and incidents in Vietnam.[18] Dr Koller diagnosed Generalised Anxiety Disorder attributable to Mr Schlegel’s experiences in Vietnam, and causing difficulties in the workplace. Dr Koller stated that this had “intensified because of aging factor and decline in physical health”.[19] On 7 October 2004 Dr Koller reiterated his diagnosis: “I am satisfied with the diagnosis of Generalised Anxiety Disorder” and recommended Dr Altman if a second opinion was required.[20]

[18] T13 folios 56 and 57.

[19] T13 folio 58.

[20] T17 folio 75.

16.     Mr Schlegel was examined by Dr Altman, a consultant psychiatrist, for the purpose of preparing a report. Dr Altman reported 5 ‘stressors’ during Mr Schlegel’s Vietnam service, including an incident in which “a loaded 45 magnum” was allegedly pointed at him during an altercation.[21] The Doctor reported that Mr Schlegel complained of nightmares about this alleged incident “on an approximately six monthly basis”. On Dr Altman’s report Mr Schlegel avoids watching war movies, or attending Anzac Day marches and reunions, and he becomes distressed on exposure to reminders of his war experiences, generally feeling detached from others and suffering from sleep disturbance, poor concentration, irritability, exaggerated startle response and hypervigilance.[22] In Dr Altman’s opinion, the stressors during Mr Schlegel’s Vietnam service “are severe enough to cause a Post-traumatic Stress Disorder”.[23] The Doctor qualified this diagnosis by stating that if “the stressors he was exposed to are not severe enough to cause a Post-traumatic Stress Disorder (and that he does not have a Post-traumatic Stress Disorder), then in my opinion as a result of his Vietnam experience he has a Generalised Anxiety Disorder”. In a later report Dr Altman stated that Mr Schlegel’s “Generalised Anxiety Disorder (or PTSD) would have started either in Vietnam or on his return from Vietnam – certainly within a period of two years following his return to Australia”.[24] The basis for this conclusion is not made clear. Dr Altman was not called to give evidence.

[21] T16 folios 63 to 64.

[22] T16 folio 64.

[23] T16 folio 66.

[24] T17 folio 80.

17.     On 30 June 2005 Dr Koller clarified his diagnosis in the light of Dr Altman’s reports and summarised the diagnosis as “generalised anxiety disorder with features of PTSD” characterised by ruminations, thought intrusions, nightmares and attempts to avoid or suppress these thoughts.[25] At this time Dr Koller noted that Dr Altman had “brought this to the surface and demonstrates a traumatic situation where the Veteran was threatened with a gun, thus showing how tightly Mr Schlegel suppresses traumatic events. There might be more.” In a further report by Dr Koller, dated 17 October 2007, the Doctor again confirmed his diagnosis of Generalised Anxiety Disorder, observing that Mr Schlegel’s prognosis was not good. This was because, in Dr Koller’s opinion, the anxiety disorder would worsen with age and declining physical health, and “there is another possibility that features of PTSD will emerge, again by reason aging and poor physical health”.[26] On 8 April 2008 Dr Koller reported that the alleged incident in which Mr Schlegel had a gun pointed at him “conforms to the Statement of Principles for PTSD” and that “[s]ubsequent symptomatology indicates the development of PTSD type reaction”.[27] Following a further consultation with Mr Schlegel on 15 April 2008, Dr Koller prepared another report in which he reiterated these remarks.[28]

[25] T17 folio 77.

[26] Exhibit A2, report dated 17 October 2007.

[27] Exhibit A2, report dated 8 April 2008.

[28] Exhibit A2, report dated 16 April 2008.

18.     Dr Koller’s oral evidence is that Mr Schlegel presently suffers from “full blown PTSD”. The Doctor explained that, initially, he had wanted to establish Generalised Anxiety Disorder “on the board”, presumably in the context of Mr Schlegel’s work-related claim against Comcare, and he did not want to cause any confusion by referring to a PTSD type diagnosis. In Dr Koller’s opinion anxiety disorders such as Generalised Anxiety Disorder and PTSD are differentially related and are not separate conditions - they are “all one thing”.[29] Distinguishing such conditions, in the manner required by Statements of Principles, is not consistent with medical approaches to diagnosis in Dr Koller’s opinion.

[29] Oral evidence; T18 folio 84 refer.

19.     On 6 September 2007 Mr Schlegel was examined by Dr Roberts, a consultant psychiatrist, for the purposes of these proceedings. Dr Roberts took a detailed history from Mr Schlegel and diagnosed an adjustment disorder of mild degree associated with anxiety and, possibly, depression.[30] This condition, in Dr Roberts’ opinion, “appears to be substantially related to the circumstances and conditions of his employment”. Dr Roberts tested for physiological concomitants of anxiety and reported that PTSD is not present. Dr Roberts’ evidence is that Mr Schlegel exercised free choice to join the Army Reserve in 1991, and that is not consistent with PTSD or a significant psychiatric condition allegedly caused by his military service. Furthermore, Dr Roberts gave evidence that Mr Schlegel’s ongoing activities and behaviours are not consistent with PTSD or with a significant psychiatric illness.

[30] Exhibit R1, 15.

20.     Considering the evidence of Dr Koller, Dr Gow, Dr Lucas, Dr Altman and Dr Roberts, and with reference to the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders[31] (DSM-IV-TR), we are reasonably satisfied that Mr Schlegel suffers from a Generalised Anxiety Disorder. Mr Schlegel’s symptoms are consistent with the array of symptoms required for that diagnosis. Thus, the diagnosis of Generalised Anxiety Disorder is established in our minds to the requisite reasonable satisfaction standard of proof. The same cannot be said in relation to PTSD.

[31] Fourth Edition – Text Revision, 2003.

21.     With regard to the evidence concerning the incident in which a NCO pointed a hand gun at Mr Schlegel, we make the following findings. We are reasonably satisfied that the incident occurred in the manner described by Mr Schlegel in his letters to his then fiancé.[32] As it appears to us the NCO either up-ended Mr Schlegel’s bed or attempted to pull him from his bed. Mr Schlegel responded aggressively, swearing at him and “snotting” him, whereupon it appears that the NCO pulled out his firearm and pointed it, momentarily, at Mr Schlegel. It appears that either the NCO put the gun away again or Mr Schlegel knocked it from his hand. In either case, Mr Schlegel then proceeded to violently assault the NCO, as a result of which he was confined to face a preliminary charge. The preliminary charge was heard and dismissed the following day. Mr Schlegel’s letters to his then fiancé reveal that the focus of his concern at the time in relation to this incident was the serious charge he faced and the possible ramifications if he was found guilty. While it can be accepted that the situation in which the NCO pointed his gun at Mr Schlegel, occurring in a war zone, was potentially life threatening, there is no contemporaneous or reliable evidence that Mr Schlegel experienced intense fear, helplessness or horror during his altercation with the NCO. For this reason we are reasonably satisfied that the incident is not a traumatic event of the kind required to diagnose PTSD. The contemporaneous evidence is simply inconsistent with Mr Schlegel’s present account. We are not persuaded by Mr Schlegel’s explanation that he did not want to alarm his fiancé by discussing his true feelings. As it appears to us that is precisely what he did and his true feelings were directed to his concern about the charge he then faced and the adverse consequences that may follow.

[32] T18 folios 111 to 116.

22.     The DSM-IV-TR sets out the diagnostic criteria for PTSD[33] the first of which concerns exposure to a ‘traumatic event’ of a particular character. As can be seen there are two limbs. In Mr Schlegel’s case, we are reasonably satisfied that the second limb is not made out. As a result, the incident involving the hand gun is not of the requisite character, and a diagnosis of PTSD is not made out on that basis.  Other events to which Mr Schlegel has referred are not consistent with this diagnostic criterion. Thus, we are reasonably satisfied that Mr Schlegel does not suffer from PTSD.

[33] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition – Text Revision, 2003 (DSM-IV-TR), 467-468.

23.     This being so, it is not necessary to proceed to consider whether the claimed PTSD is war-caused, applying the steps in Repatriation Commission v Deledio.[34]

[34] (1998) 83 FCR 82, 97. See also Mines v Repatriation Commission (2004) 86 ALD 62, 74; Masliczek v Repatriation Commission [2008] FCA 1535 at [18].

24.     We are not persuaded by the reports of Dr Altman that Mr Schlegel suffers from PTSD. Dr Altman reported that Mr Schlegel has been woken by frightening nightmares about “pointing a weapon at me” from a time soon after his return from Vietnam. This, however, is not consistent with the evidence of Dr Lucas and Dr Lark concerning Mr Schlegel’s reported history that no such problems were experienced prior to 1998. Nor is it consistent with Mr Schlegel’s own evidence that he did not remember or “blocked out” the incident with the gun until his consultation with Dr Altman. Dr Altman reported that Mr Schlegel avoided thoughts associated with his war experiences and became distressed on exposure to reminders of those experiences. This, however, is not consistent with the evidence that Mr Schlegel joined the Army Reserve and attended several ANZAC Day marches. Nor is it consistent with Mr Schlegel’s evidence concerning his family relationships, recreational activities and his work or business activities over time. Thus, we do not accept Dr Altman’s diagnosis of severe chronic war-caused PTSD; it is not made out to the reasonable satisfaction standard based on the evidence before us.

25.     With regard to Dr Koller’s oral evidence concerning Mr Schlegel suffering from “full blown PTSD”, we simply observe that this evidence is not consistent with the Doctor’s written reports and the history of his diagnosis and treatment of Mr Schlegel’s psychiatric condition since 2000. With due respect to Dr Koller, as it appears to us, on the present evidence there is a reasonable basis for the diagnosis of Generalised Anxiety Disorder in Mr Schlegel, even, possibly, for that diagnosis to include some features of PTSD as reported by Dr Koller in April 2008.[35] When one considers the diagnostic criteria for each of these conditions that can readily be understood. In our opinion, however, the presence of some features of PTSD in the context of a Generalised Anxiety Disorder is not a sufficient basis to establish the presence of “full blown PTSD”. There is no evidence that Dr Koller has examined Mr Schlegel since 15 April 2008. In the absence of further examination of Mr Schlegel, the basis on which the Doctor presently diagnoses PTSD remains opaque.

[35] Exhibit A2, reports dated 8 and 16 April 2008.

26.     Dr Roberts and Dr Lucas diagnosed Adjustment Disorder with anxiety. Considering the evidence of Dr Koller, Dr Gow, Dr White and Dr Altman, however, we are reasonably satisfied that Mr Schlegel suffers from a Generalised Anxiety Disorder. We note that this is an Axis 1 disorder that precludes a differential diagnosis of Adjustment Disorder, being a residual category under the DSM-IV-TR. It follows that we are reasonably satisfied that Mr Schlegel does not suffer from an Adjustment Disorder with anxiety and so find. That being so, it is not necessary to consider issues of war-causation concerning Adjustment Disorder.

27.     It remains to deal with the evidence of Dr Horsley. As it appears to us Dr Horsley’s evidence carries little weight. There are three reasons for this. Firstly, Dr Horsley is not a psychiatrist; he holds an MBBS qualification. It appears that Dr Horsley has experience as a medical officer employed by the Department of Veterans’ Affairs. In that role, on his evidence, he examined claimants and made diagnoses until 1992, thereafter dealing with cases on the papers and conducting research. Dr Horsley informed the Tribunal that he was instrumental in the establishment of the Vietnam Veterans’ Counselling Service and the establishment of the SoP regime administered by the Repatriation Medical Authority. By his account he had conducted training of psychiatrists in relation to Vietnam veterans, although that training was conducted with Dr Morris, a psychiatrist. We accept that by Dr Horsley’s own account he has expertise in matters of policy concerning veterans entitlements, and he has played a significant and important role in that regard. We are not persuaded, however, that such expertise and experience renders Dr Horsley an expert in the field of psychiatry or, as presently relevant, in the diagnosis of psychiatric disorders.

28.     Secondly, Dr Horsley has no clinical practice and does not treat any patients. The basis on which Dr Horsley purports to diagnose Mr Schlegel’s symptoms is unclear. By his own account he referred to DSM-IV and relied on his previous experience as a Departmental medical officer. That experience, however, was limited in scope for Departmental purposes and occurred many years ago. By his own account, the DSM-IV is not to be applied mechanically by untrained individuals in a cookbook fashion and requires the exercise of clinical judgement. With that we agree. As it appears to us, however, Dr Horsley’s clinical judgement is informed by his experience as a Departmental medical officer prior to 1992, and it is not informed by any ongoing clinical practice or any experience treating patients with psychiatric illnesses. The weight to be attributed to his clinical judgement is therefore reduced.

29.     Thirdly, it appears, and Dr Horsley conceded, that he examined Mr Schlegel at the residence of Mr John Orr, Mr Schlegel’s representative in these proceedings. By Dr Horsley’s account, he conducted the consultation with Mr Schlegel on the back verandah and Mr Orr delivered coffee. Dr Horsley informed us that this was not a regular occurrence and it had occurred in one other case. He informed us that Mr Orr had provided him with a briefing letter, but no such letter was adduced in evidence. The arrangements between Mr Orr and Dr Horsley, both being former employees of the Department of Veterans’ Affairs, for the examination of Mr Schlegel, are not entirely transparent. The circumstances in which that examination occurred raise serious questions about the impartiality of Dr Horsley’s report.

30.     For these reasons Dr Horsley’s evidence is not persuasive and little weight attaches to it.

31.     Thus, in sum on the question of diagnosis, we are reasonably satisfied that Mr Schlegel suffers from symptoms that are consistent with a Generalised Anxiety Disorder.

is the diagnosed condition war-caused?

32.     In order to determine whether Mr Schlegel’s Generalised Anxiety Disorder is war-caused we will follow the steps set out in Repatriation Commission v Deledio.[36]

[36] (1998) 83 FCR 82, 97.

is a hypothesis of war-causation of the diagnosed condition raised on the material?

33.     In order to properly address this question it is necessary to have regard to all of the material.[37]  It is not necessary to reject or evaluate the weight or acceptability of the evidence or to resolve conflicts at this stage.[38] Nevertheless, a reasonable hypothesis involves more than mere possibility.[39] If an essential link in the hypothetical chain linking the disease suffered by the veteran and the circumstances of his relevant service is not pointed to or raised by the material and is merely asserted or left open, then it follows that the hypothesis of connection is not so raised and is not reasonable.[40]

[37] Repatriation Commission v Bey (1997) 79 FCR 364, 367

[38] Repatriation Commission v Delidio (1998) 83 FCR 82, 97; Dunlop v Repatriation Commission [2003] FCAFC 201, [35].

[39] Repatriation Commission v Bey (1997) 79 FCR 364, 372, 373; East v Repatriation Commission (1987) 16 FCR 517, 522.

[40] Dunlop v Repatriation Commission [2003] FCAFC 201 at [34]; Connors v Repatriation Commission (2000) 59 ALD 61, 68.

34.     The material before us raises a hypothesis connecting Mr Schlegel’s Generalised Anxiety Disorder with events during his operational service: the Disorder was caused by stressful incidents during the period of Mr Schlegel’s operational service in Vietnam, including undertaking patrol duties, an incident in which an officer was killed by a serviceman exploding a grenade, an incident in which a serviceman was killed by another fooling around with a machine gun, the death of servicemen known to Mr Schlegel on service, and an altercation with a NCO in which a gun was pointed at Mr Schlegel. Typed copies of two letters Mr Schlegel wrote to his (then) fiancé on 24 and 25 June 1970 are in evidence (the originals were sighted by the Tribunal). These documents refer to the altercation with the NCO in which a gun was pointed at him. [41]  The occurrence of other alleged incidents appears to be supported by research conducted and reported by Writeway Research Service Pty Ltd.[42] The reports of Dr Koller, Dr White and Dr Altman suggest that these events and incidents caused the anxiety disorder from which Mr Schlegel presently suffers.

[41] T19 folios 111 to 116.

[42] Exhibit R2.

is an SoP concerning the diagnosed condition in force?

35.     SoP Instrument Number 101 of 2007 concerning Anxiety Disorder is presently in force.  We have also considered SoP Instrument Number 1 of 2000 concerning Anxiety Disorder that was in force when Mr Schlegel’s claim was first determined. [43]

[43] Gorton v Repatriation Commission [2001] FCA 286, at [19], [24].

is the raised hypothesis consistent with the requirements of the SoP?

36.     Unfortunately for Mr Schlegel, the raised hypothesis is not consistent with either the present or the previous SoP. Each SoP sets out the factors that must exist connecting Mr Schlegel’s Generalised Anxiety Disorder with his relevant service. None of these factors are pointed to on the material before us. We note in passing that Mr Schlegel’s Generalised Anxiety Disorder is consistent with the meaning of that term at clause 3 of the 2007 SoP and clause 8 of the 2000 SoP. Furthermore, there is no evidence that Mr Schlegel suffered from an anxiety disorder prior to his service in Vietnam. We note the observations of Dr Spragg, a psychiatrist, who examined Mr Schlegel prior to his deployment.[44]

[44] T11 folios 36-37.

37.     The factors connecting Generalised Anxiety Disorder with the relevant service are set out at clause 6 of the 2007 SoP and clause 5 of the 2000 SoP. In the circumstances, the only relevant factors are those set out at subclause 6(a)(ii) of the 2007 SoP and subclause 5(a)(ii) of the 2000 SoP. There is no material indicating that Mr Schlegel experienced a Category 1B or a Category 2 stressor.

38.     It is necessary to consider the material pointing to the clinical onset of Mr Schlegel’s depressive disorder.[45]  The term ‘clinical onset’ requires the manifestation of all symptoms,[46] in the specified degree, frequency or duration, sufficient to satisfy the defined condition.  If all of the required symptoms are not present, then the definition cannot be said to be satisfied and ‘clinical onset’ has not occurred.

[45] Lees v Repatriation Commission [2002] FCAFC 398 at [13], [16].

[46] See clause 3 of the 2007 SoP, or clause 8 of the 200 SoP.

39.     There is no material that points to Mr Schlegel suffering symptoms that are sufficient to suggest the clinical onset of Generalised Anxiety Disorder or any other psychiatric disorder within five years[47]  or two years[48] of the stressful events he experienced during his tour of duty in Vietnam.

[47] Factor 6(a)(ii), 2007 SoP.

[48] Factor 5(a)(ii), 2000 SoP.

40.     We note that the reports of Dr Koller, Dr White and Dr Altman suggest that Mr Schlegel’s Generalised Anxiety Disorder arose as a result of his service in Vietnam. Dr Koller and Dr Altman report that, in their opinion, symptoms would have been present during or immediately after service and that those symptoms would have been sufficient to establish the clinical diagnosis of Generalised Anxiety Disorder at that time. The basis on which the Doctors formed that opinion is not clear, and there is no contemporaneous material before us pointing to any such conclusion. On the contrary, the material before us suggests that Mr Schlegel undertook activities after the stressful incidents to which reference has been made and these activities are not consistent with an Anxiety Disorder. In the letters Mr Schlegel wrote to his fiancé he referred extensively to his concern arising from the serious charge he faced, but he did not refer to any concern about the gun being pointed at him. Mr Schlegel denied withdrawing socially after this event, his evidence was that he continued to socialise with his unit colleagues on service. On returning to Australia, the evidence is that Mr Schlegel got on with his life, returning to his former public service employment with improved performance being noted.[49] He married his fiancé and the couple made business investments and later purchased a house and had a family. There is no evidence of early discord or emotional problems in their relationship. Mr Schlegel’s evidence was that he attended several ANZAC Day marches before and after the birth of his first child in or about 1977.

[49] Exhibits R3, R4 and R5 refer.

41.     The evidence concerning the onset of symptoms includes Mr Schlegel’s own assessment in a letter to Dr White dated 3 December 2002.[50] In that letter, Mr Schlegel clearly identifies his first experience of symptoms in 1998.[51] He states that “it was hard for me to believe that there may have been something seriously wrong with me. My belief was that it was totally a Departmentally orientated situation causing my mental state”.[52] Mr Schlegel sets out the details and circumstances in which he first experienced serious anxiety and stress on 6 March 1998 in a submission to Health Services Australia dated 22 October 1998.[53] Mr Schlegel reviewed the history of his condition in a letter to his former employing Department dated 16 March 2004, and again stated that his symptoms commenced in 1998.[54] Of course, these materials must be considered in relation to the present evidence in support of Mr Schlegel’s claim. In that regard we note significant inconsistencies. As it appears to us, Mr Schlegel purports to recollect events that he did not previously recollect or that did not previously cause him concern. He purports to have experienced symptoms, including nightmares and avoidance behaviours, that he did not previously refer to or complain about. Such inconsistent evidence does not suggest that sufficient symptoms were present within two years of the stressful incidents Mr Schlegel experienced in Vietnam. Considering all of the material, we are not persuaded that it points to the clinical onset of any psychiatric disorder in Mr Schlegel within five years of the stressful events to which he has referred. The whole of the material points to the onset of psychiatric symptoms many years later in or about 1998.

[50] Exhibit R6.

[51] Exhibit R6, 2.

[52] Exhibit R6, 3.

[53] Exhibit R7, 6-7.

[54] Exhibit R8, 3.

42.     As we have said, a reasonable hypothesis involves more than mere possibility.[55] The SoP requires the presence of a number of distinct but conjunctive symptoms, of which ‘clinically significant distress or impairment in social, occupational or other important areas of functioning’ is but one.  If the material does not point to the presence of that symptom, and it does not, then consistent with the standards specified in the SoP, the anxiety disorder is not present.

[55] Repatriation Commission v Bey (1997) 79 FCR 364, 372, 373; Dunlop v Repatriation Commission [2003] FCAFC 201, [34]; Connors v Repatriation Commission (2000) 59 ALD 61, 68.

43.     It follows, therefore, as all of the essential diagnostic criteria for Generalised Anxiety Disorder, as defined at cl 3(b) of the 2007 SoP and cl 8 of the 2000 SoP (with reference to the relevant definitions and diagnostic criteria set out in DSM-IV-TR), are not pointed to as present at any time prior to 1998, it cannot be said that the particular anxiety disorder was present or that the clinical onset of the disorder occurred prior to that time.

44. It follows that the raised hypothesis is not consistent with the factors set out in the 2007 SoP or the 2000 SoP. It is, therefore, not a reasonable hypothesis for the purposes of subs 120A(3), 120(3) and 120(1) of the Act. That being so, we are satisfied beyond a reasonable doubt that there is no sufficient ground for determining that Mr Schlegel’s Generalised Anxiety Disorder is war-caused.

conclusion

45.     We have found that Mr Schlegel does not suffer from PTSD. He does suffer from Generalised Anxiety Disorder, but this Disorder is not war-caused. That being so, the decision under review must be affirmed.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member.

Signed: .....................[Signed]...........................
  Demelza-Rose Gale           
  Associate

Date of Hearing      23-24  October 2008

Date of Decision      20 November 2008

Representative for the Applicant:      Mr J. Orr

Representative for the Respondent:  Mr B. Tallboys