Scott and Repatriation Commission
[2010] AATA 1056
•23 December 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 1056
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3056
VETERANS' APPEALS DIVISION ) Re Sharon Scott Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Senior Member A K Britton Date23 December 2010
PlaceSydney
Decision The decision under review is affirmed.
....................[sgd]....................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - defence service - depressive disorder – Statements of Principle (SoP) - causation – whether condition connected with defence service.
Veterans Entitlements Act 1986 (Cth) — ss 70, 120, 196B
Lees v Repatriation Commission (2002) 74 ALD 68
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
REASONS FOR DECISION
23 December 2010 Senior Member A K Britton 1. Ms Sharon Scott has made a claim for a pension under the Veterans’ Entitlement Act 1986 (Cth) (the Act) in respect of a “depressive disorder”. That claim has been refused by the Repatriation Commission, the respondent in these proceedings, and on review by the Veterans Review Board. Ms Scott now seeks review by the Administrative Appeals Tribunal.
2. Ms Scott contends that the Commonwealth is liable for her condition of depression because it is “defence-caused”, in that was the result of three sexual assaults that occurred during a period of “eligible defence service”.
3. The parties agree that Ms Scott suffers from a “dysthymic disorder” as that term is defined by the Statement of Principles for “Depressive Disorder” (Instrument No. 28 of 2008). The key issue in dispute is whether the disorder was “attributable to” Ms Scott’s service with the Royal Australian Navy.
Statutory framework
4. Ms Scott’s service with the Royal Australian Navy between 1976 and April 1994 constitutes “defence service” within the meaning of s 68 of the Act. The Commonwealth will be liable to pay a pension by way of compensation to Ms Scott if she is incapacitated from a “defence-caused injury/disease”: s 70(1). A disease shall be taken to be “defence-caused” if, in the decision-maker’s opinion, it was "attributable to any defence service" performed by the veteran: s 70(5)(a). The decision-maker is required to decide the matter to its reasonable satisfaction: s 120(4).
5. Section 120B(3) provides that the decision-maker is to be reasonably satisfied that a disease suffered by Ms Scott was defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
6. The Statement of Principles determined by the Repatriation Medical Authority under s 196B(3) on which Ms Scott relies, is “Depressive Disorder — Statement of Principles, Instrument No. 28 of 2008”. It provides that at least one of the factors enumerated in clause 6 of that Statement must exist before it can be said, on the balance of probabilities, that a depressive disorder is connected with the circumstances of the person’s relevant service. Ms Scott relies on the factors set out in paragraphs 6(a)(i) and 6(a)(ii):
(i) experiencing a category 1A stressor within the two years before the clinical onset of depressive disorder; or
(ii) experiencing a category 1B stressor within the two years before the clinical onset of depressive disorder; or
7. Section 196B(14) of the Act details various circumstances that can be used to identify when factors set out in the Statements of Principle are “related to” service. It relevantly provides:
(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
…
(d) it was contributed to in a material degree by, or was aggravated by, that service; …
8. Section 120(3) requires the following issues to be determined:
(i)Does the material “raise a connection” between the disease and Ms Scott’s defence service?
(ii)Do either of the factors relied on, namely 6(a)(i) and/or 6(a)(ii), “exist”?
(iii)If so, are the factors “related to” Ms Scott’s service?
These questions must be answered on the balance of probabilities.
Does Ms Scott suffer from a dysthymic disorder?
9. Consistent with the respective opinions of psychiatrists, Drs Anthony Dinnen and Selwyn Smith, who assessed Ms Scott for the purpose of these proceedings, the parties agree that Ms Scott is suffering from a chronic depressive disorder or a “dysthymic disorder” as defined by SoP No 28 of 2008. There is no evidence to contradict that opinion and I reasonably satisfied that Ms Scott suffers from that disorder.
Does the sop uphold the contention that ms Scott’s depression is connected with defence service?
10. Whether, as Ms Scott contends, SoP No. 28 of 2008 upholds the contention that her depressive condition is connected with her defence service requires the following issues to be determined:
(i)Did the assault as alleged occur, and if so, when?
(ii)Do any or all of the assaults constitute a Category 1A or Category 1B stressor?
(iii)When was the clinical onset of Ms Scott’s depressive disorder?
Was Ms Scott sexually assaulted as alleged?
11. Ms Scott contends that she was sexually assaulted on three occasions while in the Navy.
12. First alleged assault: According to Ms Scott, the first assault occurred in February/March 1977 shortly after she joined the Navy. She was about 20 years of age at the time. She alleges that after having a couple of drinks at the Junior Sailors Mess she was escorted back to the WRANS quarters by a male sailor. According to Ms Scott, after a brief period of kissing and embracing, the sailor “wanted more” and held her by the wrists. She told him she wasn’t prepared to go any further. On her account, the sailor reluctantly let her go after a short period and she was left “very shaken”.
13. Second assault: According to Ms Scott, she was assaulted a second time two or three years later. She claims that she was escorted back to the WRANS quarters by a young sailor at approximately 11 pm after attending a social gathering at the Junior Sailors’ Mess. She claimed that the sailor pushed her to the ground and held her by the wrists. She said she tried to yell out but no sound came out. On her account he fondled her and she started to cry because she thought he was going to hurt or rape her. She said she was released after about 10 minutes when someone appeared nearby. She estimates that the incident lasted about 10 minutes but “felt like years”. She claims that she was “very scared”.
14. Ms Scott stated that immediately after the incident she tried to ring the Quartermaster and report the incident but found herself unable to speak. She claimed that because she feared her assailant might follow her she took an alterative route to her room. She took a shower because she felt “very dirty” and lay in bed crying.
15. In a statement prepared for these proceedings, Ms Scott claimed that this assault occurred while she was posted to HMAS Coonawarra, Darwin sometime between March 1978 and April 1980, but she could not remember the exact date. In oral evidence, Ms Scott said that the incident probably occurred toward the end of the posting — that is, in early 1980 — but she could not be sure. She was confident however that it had occurred during her posting to HMAS Coonawarra. Service records reveal that that posting was between 19 May 1978 and 12 March 1980.
16. Third assault: According to Ms Scott, she was assaulted on a third occasion sometime between May 1985 and September 1986. She claims that she met her alleged assailant in broadly the same circumstances as she had met her previous assailants, namely at a social event at a Junior Sailors’ Mess. After the Mess closed, Ms Scott and the sailor proceeded to Alexandria House which was then, according to Ms Scott, used as transit accommodation for junior sailors. She said they went to the recreation room and chatted. The sailor started to kiss her and then “without warning” started to fondle her. She stated that his mannerisms abruptly changed and he would not take “no” for an answer. She said she was scared and felt she had no option but to acquiesce to his demand for oral sex. She said that after this incident she felt traumatised and lost self esteem. She stated that she did not know who to turn to without being blamed for instigating the incident.
17. Report of assaults: In a statutory declaration dated 31 October 2008, apparently for the purpose of proceedings before the Veterans Review Board, a cousin of Ms Scott stated that in 1998 Ms Scott told her about the three assaults. The cousin stated that Ms Scott was very emotional as she had “bottled up” her feelings for a long time. The description of the assaults given by the cousin is broadly consistent with that given by Ms Scott in these proceedings. According to Ms Scott, her cousin was the first person she had confided in about the assaults and her disclosure was triggered by her cousin’s own disclosure that she had been assaulted.
18. Since the early 1990’s, Ms Scott has been receiving treatment from psychologists and psychiatrists on an intermittent basis. In February 1998, Ms Scott was referred to counsellor, Ms Anastacia Irenmonger for “review and on-going counselling and support” as a result of “ongoing personality conflicts at work which are starting to grate on her”. According to Ms Scott, Ms Ironmonger told her not to worry about the assaults when she mentioned them because they “happened a long time ago”. Brief clinical notes made by Ms Ironmonger are included in the documents provided by the Commission under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (See report of Ms Irenmonger, dated 6 February 1998, T3, p 85). They make no mention of the alleged assaults.
19. The first record of Ms Scott disclosing the incident to a medical practitioner is a report prepared by psychiatrist, Dr Karl Koller dated 2 May 2007. Dr Koller assessed Ms Scott at the request of the Department of Veterans Affairs following receipt of her claim for a pension. Dr Koller recorded:
Then with considerable reluctance and shyness she informed me that on three separate occasions at Cerberus, in 1977, at Coonawarra in the 1980’s and Harman in the early 1990’s she had been attacked by drunken sailors on social outings. These attacks especially the last she asserts have led her to lead an anxious somewhat avoidant life pattern. She is also aware that she has become depression prone. The above dates are not confidently provided…
20. In examination-in-chief, Ms Scott was asked why she had not mentioned the assaults to any of the practitioners, she saw throughout the period they occurred. She testified that she “didn’t like to talk about the incidents”. She said she had not disclosed the assaults to psychiatrist, Dr Stevens, who treated her for depression for in the early 1990’s, because he was male and the question “didn’t come up”.
21. Ms Scott was assessed for the purpose of these proceedings by psychiatrist, Dr Anthony Dinnen who prepared a report dated 14 April 2010 and also gave oral evidence. Dr Dinnen thought that Ms Scott’s failure to disclose the assaults to practitioners indicated that they were of great emotional significance to her. In his opinion it is a “normal mechanism” to suppress memories and associated memories of traumatic events. In contrast, physiatrist Dr Selwyn Smith who also assessed Ms Scott for the purpose of these proceedings thought :
It is usual practice to enquire in regard to significant events in an individual’s life on the basis of exploring the role of such factors in contributing, precipitating or being a causative factor in regard to the patient’s clinical presentation. I respectfully disagree with Dr Dinnen’s speculations pertaining to Freudian therapy to account for Ms Scott’s reluctance to disclose events to her therapist. On a balance of medical probability it is my opinion that had they been of sufficient import from a psychological point of view she would have disclosed the events to therapists who were attempting to assist her.
22. Findings and conclusions: I am satisfied that notwithstanding the absence of any independent contemporaneous evidence and her failure to report the assaults for over a decade, that Ms Scott was assaulted as alleged for these reasons. First, apart from the date of the third assault, to which I shall return, Ms Scott has given a consistent account of the incidents since first disclosing them to her cousin in the late 1990’s. Second, her account of the assaults given in these proceedings was consistent with the histories given to the VRB and Drs Koller and Dinnen and the complaint evidence given by her cousin. Third, Ms Scott has provided a plausible explanation for the delay in disclosing the incidents. Fourth, she impressed me as an honest, reliable and frank witness who gave her evidence in a very straightforward manner and did not seek to embellish or exaggerate her account of the incidents. That impression was consistent with the opinion of Drs Dinnen and Smith, who both stated that they had no reason to doubt her veracity. Fifth, her version of events is in my opinion inherently plausible.
23. Ms Scott has given various dates about when the third assault occurred. In these proceedings, she claimed that it occurred sometime between May 1985 and September 1986 and not, as previously claimed, in the early 1990’s. In her statutory declaration prepared close to a decade after her conversation with Ms Scott, the cousin stated that she been told that the third assault happened “in 1985 in Canberra”. Three months after she had prepared her statement for these proceedings, Ms Scott told Dr Smith that it occurred sometime between May 1985 and September 1986. In contrast, she told Dr Koller in 2007, the VRB in April 2009 and Dr Dinnen in April 2010 that it had occurred in the early 1990’s.
24. When questioned in these proceedings about the discrepancy in the dates given for the third assault, Ms Scott stated that she was now “very confident“ that it had taken place in the period she nominated in these proceedings. She said that in preparation for these proceedings she had thought about the incident a lot and discussed the matter with a former colleague. The colleague had reminded her that by the 1990’s the Mess where she had met the third assailant had become a Senior Sailors’ Mess, which meant that the incident could not have occurred at that time because she did not have access to that mess as a junior officer.
25. Whichever dates are accepted, given the passage of time and the absence of any contemporaneous records, it is not surprising that Ms Scott has struggled to pinpoint the date of the third assault. That task has been made especially difficult given that she was posted to the HMAS Harman in Canberra where the assault occurred on a number of occasions throughout her naval career. However, I believe that that the dates now given for the third assault can be confidently accepted. Ms Scott has now had the advantage of drawing on the knowledge of a colleague about the history and layout of the base where the assault occurred. Through those discussions she has been able to exclude the possibility that the incident occurred in the 1990’s. The period now nominated by Ms Scott is also consistent with the dates given to her cousin in 1998.
26. Ms Scott’s service records reveal that she was posted to HMAS Harman between June 1985 and April 1986. It follows that the assault must have occurred during this period and not in the slightly longer period Ms Scott claims — that is, between May 1985 and September 1986.
27. In summary, I am satisfied that Ms Scott was assaulted in the manner as alleged on three occasions — namely in or about February/March 1977, and sometime during the periods,, March 1978 to April 1980 and June 1985 to April 1986.
Do any of the assaults constitute a “stressor”?
28. Paragraph 9 of SoP No. 28 of 2008 defines “a category 1A stressor” to mean one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
29. The determination of whether any or all of the assaults constitute a category 1A stressor requires both an objective assessment and regard to Ms Scott’s subjective assessment. Her account of being unable to speak after the second incident, and being fearful that she was going to be raped or worse during the second and third incidents, indicates that she perceived each to be very serious in nature. All would constitute a sexual assault for the purposes of the criminal law. While none could be described as falling within the “most serious” range of sexual assaults, I am nonetheless satisfied that the second and third assaults constituted a “serious physical assault” and/or “sexual molestation”. I am not satisfied that the first assault objectively viewed could be described as a “serious physical assault” or “sexual molestation”, although I accept that Ms Scott perceived it to be.
when was clinical onset?
30. In order for Ms Scott to satisfy factor 6(i)(a) or 6(i)(b) of the relevant SoP, it is necessary that one of the “stressors” occurred within the two year period immediately prior to clinical onset of her depressive condition.
31. Ms Scott’s primary submission is that the clinical onset of the condition occurred in March 1981, within two years of her experiencing the second assault.
32. The identification of the date of clinical onset requires a careful review of all material that is before me, including the medical evidence and the evidence given by Ms Scott.
33. In her statement, Ms Scott stated that since the assaults she had trouble sleeping, lacked self confidence, felt ashamed and avoided people. She also stated that after the third attack she felt “traumatised and [experienced a] loss of self esteem”. In oral evidence, she clarified that she started to feel ashamed after the second attack and developed a problem with sleeping and a lack of self confidence after the third. On her account, she started avoiding people after she started living in “co-ed accommodation” in about 1991. She stated that when she first saw Dr Stevens [in December 1991] she was not enjoying the Mess at HMAS Harman where she was then posted, as it was the location of the third attack that had brought back “previously suppressed feelings”.
34. The first record of Ms Scott reporting symptoms of any psychiatric condition is a daily medical record made by a Navy medical officer on 20 March 1981 in which a diagnosis of “anxiety state” was recorded. Under the heading “physical examination, symptoms and treatment” the medical officer wrote, ”Is very depressed [indecipherable] because of illness of father”. The officer also recorded that he had prescribed an anti-depressant, Sinequan, 25 milligram per day. Dr Dinnen testified that Sinequan assisted with symptoms of “sleep disturbance, negative mood, feelings of sadness, difficulties coping, feeling upset and easily provoked and stressed”.
35. The second reference to Ms Scott reporting symptoms of a psychiatric condition is a medical record made on 14 November 1984 which noted a diagnosis of “migraine”. Under the heading “physical examination, symptoms and treatment” was written “[indecipherable] mild anxiety”. Migral was prescribed, a drug used to treat migraine and Diazezepam, more commonly known as Valium.
36. The next reference to a psychiatric condition is to be found in a record made on 5 July 1985 by medical officer, Dr John Alwyn in which he wrote:
Depressed? due to pill
to try Tripshasil or Triquilar [anti-depressants]
review in one week
Still 70.9k
37. Ms Scott’s service medical records prior to 1981 make no express mention of any psychiatric condition. The records refer to her weight increasing from 48 kg at the time of the enlistment to 72 kg by April 1980. The progress of that weight gain is unclear from the records.
38. A report prepared by the Army Medical Board dated 8 September 2000 gave “1994 Canberra” as the date and place of origin of Ms Scott’s depressive disorder. It recorded that Ms Scott had “variable depressive symptoms intermittently since at least 1994”. A report of the same date prepared in the context of a review of Ms Scott’s employment classification stated:
PO Scott has had variable depressive symptoms intermittently since at least 1994. This has been treated with psychological intervention and anti depressants. In May 1999 she was started of Serzone which was changed to Cipramil in November 2000 on posting to Canberra and referral to Dr White (psychiatrist). Her symptoms were minor – fatigue, eating disturbance and low mood. She attributes much of her low mood to difficult postings in Sydney and Canberra. She is now in a reserve post and has been much happier. PO Scott has felt well for about six months so it is planned to reduce her cipramil over the next few weeks. If she remains well at her next MECR in three months then it is anticipated that she will be MEC 202.
39. In a report dated 2 May 2007, Dr Koller recorded a history of “chronic depression which dated from the late 1990’s”. In a report dated 14 April 2010 Dr Dinnen wrote:
Onset of symptoms
The patient told me that she had become aware of difficulties in the early 1990’s. She had low self esteem. She had poor sleeping habits. She “thought people were saying things when they probably weren’t”. She recalled that she felt ashamed because of her low self esteem.
The patient told me that because of these problems she believes she probably turned to food. She would break out crying. She was in Sydney at the time and someone would say “how are you” and she would burst into tears. “I felt I was heading for a nervous breakdown – but I didn’t”.
40. In examination-in-chief, Dr Dinnen admitted that he had overlooked the three medical records discussed in par [34] - [36] of these reasons when he provided his initial assessment of Ms Scott. On the basis of that information, he revised his original opinion that “clinical onset” occurred in the early 1990’s. He concluded that the reference in the first of these records to Ms Scott being “very depressed” together with the decision to prescribe anti-depressants, indicated that the treating practitioner was of the opinion that at that time Ms Scott was suffering from depression. Dr Dinnen was not dissuaded in his opinion by the treater’s recorded diagnosis of “anxiety state”. In his opinion, feelings of anxiety are commonly experienced as a symptom of depression.
41. In contrast, Dr Smith believed that Ms Scott’s depressive disorder pre-dated March 1981 and that she been suffering a low grade depressive disorder from an early age. He said he reached that conclusion on the basis of Ms Scott’s general social avoidance and her difficulty with her weight from an early age. He had “no difficulty” with accepting the proposition that a dysthymic disorder was present in 1981.
42. In Lees v Repatriation Commission (2002) 74 ALD 68, Heerey, Moore and Kiefel JJ said at 72 that there is clinical onset of a disease, either:
·When a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
·When a finding is made on investigation which is indicative to a doctor that the disease is present.
43. In Lees, their Honours referred to Repatriation Commission v Gosewinckel (1999) 59 ALD 690 in which the meaning of "clinical onset" in the context of a SoP for “generalised anxiety disorder” was considered. Weinberg J said at 704-705:
The SoP requires the presence of a number of distinct symptoms, of which "clinically significant distress" and "restlessness or feeling keyed up or on edge" are only part. Unless the symptoms referred to in cl4(a)(i), at least three of (a)(ii)(A) to (F), and (a)(v) are all present, and the case does not fit within (a)(iii) and (iv), (b) and (c), it cannot be said, consistently with the medical-scientific standard prescribed by the SoP, that generalised anxiety was present.
44. Their Honours in Lees rejected the proposition that the question of clinical onset in the context of a disease of gradual onset should be approached on the basis that it would be sufficient if only one of the prescribed symptoms may have manifested itself, and said at [16]:
[That] approach overlooks the clear words of the applicable Statements of Principles and the function they perform in the legislative scheme. In relation to SoP1, the definition of "generalised anxiety disorder" does not suggest that the disease exists if only some but not all of the symptoms (or features) are manifest. … The purpose of the definition is to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from generalised anxiety disorder. While it is true that Statements of Principles are directed to causation, the means of establishing the necessary link in SoP1 between disease and war service is to require that the symptoms (or features) of the disease are, in a case such as the present, revealed within two years of the veteran experiencing a severe psychosocial stressor (relevantly, during operational service). This is intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis. ..
45. While the authorities make clear that evidence of a formal diagnosis or treatment is not needed to support a finding of clinical onset, nonetheless, at the relevant time there must be present objective signs and symptoms which indicate the presence of the subject disease, in this case a “dysthymic disorder”.
46. SoP no 28 of 2008 lists the diagnostic criteria for a "dysthymic disorder" as:
A. Depressed mood for most of the day, for more days than not, as indicated either by subjective account or observation by others, for at least two years. In children and adolescents, mood can be irritable and the duration must be at least one year.
B. Presence, while depressed, of two (or more) of the following:
(1) poor appetite or overeating;
(2) insomnia or hypersomnia;
(3) low energy or fatigue;
(4) low self-esteem;
(5) poor concentration or difficulty making decisions; or
(6) feelings of hopelessness.
C. During the two-year period (one year for children or adolescents) of the disturbance, the person has never been without the symptoms in criteria (A) and (B) for more than two months at a time.
D. No major depressive episode has been present during the first two years of the disturbance (one year for children and adolescents); i.e., the disturbance is not better accounted for by chronic major depressive disorder, or major depressive disorder, in partial remission. There may have been a previous major depressive episode provided there was a full remission (no significant signs or symptoms for two months) before development of the dysthymic disorder. In addition, after the initial two years (one year in children or adolescents) of dysthymic disorder, there may be superimposed episodes of major depressive disorder, in which case both diagnoses may be given when the criteria are met for a major depressive episode.
E. There has never been a manic episode, a mixed episode, or a hypomanic episode, and criteria have never been met for cyclothymic disorder.
F. The disturbance does not occur exclusively during the course of a chronic psychotic disorder, such as schizophrenia or delusional disorder.
G. The symptoms are not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition (e.g., hypothyroidism).
H. The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
47. Despite a recorded diagnosis of “anxiety state”, I am reasonably satisfied that when seen by the medical officer in March 1981, Ms Scott was suffering from symptoms of “depression”. That finding is consistent with the decision to prescribe an anti-depressant and the reference to Ms Scott being “very depressed”. However, the issue is not whether at that time Ms Scott presented with symptoms of “depression”, but whether she suffered from symptoms (or features) which, if observed, would warrant a conclusion that she suffered from a “dysthymic disorder” (see Lees at [16]).
48. A conclusion that a dysthymic disorder was present requires that each of eight diagnostic criteria listed in SoP No 28 be met. Diagnostic criterion A requires “depressed mood for most of the day, for more days than not … for at least two years”. Under the SoP “depressed mood” can be evidenced by either self-report or the observation of others. Apart from the opinion of Dr Smith, to which I shall return, there is no evidence to indicate that Ms Scott suffered from chronic depressed mood for the requisite duration prior to March 1981. Dr Dinnen was not of that opinion. Nor does the evidence given by Ms Scott in these proceedings, her service records or the clinical histories taken by those practitioners whose reports are before me, suggest that she met the diagnostic criterion at that time.
49. Diagnostic criterion B requires the presence “while depressed” of at least two of the following:
(1) poor appetite or overeating;
(2) insomnia or hypersomnia;
(3) low energy or fatigue;
(4) low self-esteem;
(5) poor concentration or difficulty making decisions; or
(6) feelings of hopelessness.
50. It could be inferred from the evidence of weight gain that Ms Scott had been overeating prior to 1981. On her own account, her problems with sleeplessness and low self esteem did not emerge until after the third assault. There is nothing to suggest that any of the other factors listed by Diagnostic Criterion B were present at that time.
51. I accept the Commission’s submission that an examination of Dr Dinnen’s evidence makes plain that he did not turn his mind to the relevant diagnostic criterion for a dysthymic disorder in reaching his opinion that Ms Scott suffered from a “depressive disorder”. At its highest, his opinion is that in 1981 and 1984 she presented with systems of depression. For different reasons, I am also unable to accept the opinion of the Commission’s expert, Dr Smith, that Ms Scott had suffered from a low-grade depressive disorder from an early age. That opinion is not supported by either the history he took or other medical evidence. Central to Dr Smith’s opinion that Ms Scott was suffering from a dysthymic disorder in 1981 is his finding that the condition was long-standing and constitutional, an opinion not shared by Drs Dinnen or Koller or consistent with Ms Scott’s service records.
52. There is no direct evidence that had Ms Scott’s symptoms (or features) been observed or an appropriate history taken, it would have enabled a clinical physician to conclude that that each diagnostic criteria of a dysthymic disorder was satisfied in 1981. Nor in my view is there any evidence that would support that inference being drawn. In reaching that conclusion, I have had regard not only to the contemporary evidence but subsequent evidence relating to the progression of Ms Scott’s condition.
53. It follows that I am unable to find that the date of clinical onset was in or around March 1981.
54. Lest, for the purpose of determining the date of clinical onset, I have misapplied the two year duration test contained in Diagnostic Criterion A, I will consider whether a clinician could have concluded that Ms Scott met that criterion if the requirement of “depressed mood … for at least two years” was applied prospectively — that is, from March 1981 onwards.
55. The first record of Ms Scott reporting symptoms of a psychiatric condition after March 1981, however described, is the clinical note made on 14 November 1984. The medical records that relate to the intervening period contain no mention of Ms Scott reporting, or suffering from, “depressed mood”, however defined. None of the medical reports or clinical notes prepared by the practitioners who subsequently treated Ms Scott for depression records a history of depressed mood that would meet the frequency and duration required by Criterion A.
56. On the material before me, I could not be reasonably satisfied that the second assault occurred within the two years prior to clinical onset of Ms Scott’s dysthymic disorder.
Alternative possible date of clinical onset
57. Even if assumed that the date of clinical onset was on or around July 1985 — the third recorded occasion Ms Scott reported symptoms of depression to a medical practitioner — factors 6(a)(i) and 6(a)(ii) of the SoP would not be satisfied. This is because the best evidence of when the third assault occurred is that given by Ms Scott who placed it in the period June 1985 to April 1986. As it is not possible to exclude the possibility that the assault occurred in the latter part of that posting, I could not be reasonably satisfied that clinical onset post-dated the date of the third assault.
Date of clincal onset
58. It seems to me more likely than not that clinical onset occurred some time in the late 1980’s/early 1990’s. That finding is supported by Ms Scott’s evidence and the history given to various practitioners over an extended period; see, for example, the history taken by Dr Dinnen; the reports of Ms Scott having suffered various depressive symptoms since at least 1992 (report of Dr Bruce Stevens, 14 February 1992, T3 at p 152) and the reference to “her problems” being of a chronic nature by 1992 (see for, example for the report of Dr Bruce Stevens, 21 February 1995 T3 at p. 136).
Conclusion
59. As I am not reasonably satisfied that any of the assaults occurred within the two year period before clinical onset of Ms Scott’s dysthymic disorder, I must affirm the decision under review.
I certify that the 59 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 BrittonDates of Hearing: 24-25 November 2010
Date of Decision: 23 December 2010
Counsel for the Applicant: Ms E WoodSolicitor for the Applicant: Legal Aid Commission of NSW, Veterans' Advocacy Service
Solicitor for the Respondent: Department of Veterans' Affairs
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