Scott and Repatriation Commission
[2007] AATA 1809
•13 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1809
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600786
VETERANS’ APPEALS DIVISION ) Re ALLEN ARTHUR SCOTT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Carstairs, Senior Member
Dr J B Morley, RFD, Member
Date13 September 2007
PlaceBrisbane
Decision For reasons given orally after the hearing the Tribunal sets aside the decision under review and substitutes the decision that the applicant’s depressive disorder, diabetes mellitus and hypertension are war-caused with effect from 24 December 2004.
The Tribunal remits to the respondent the assessment of the rate of pension payable to the applicant.
..............................................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – medical conditions of depressive disorder, diabetes, hypertension – whether conditions are service related – application of Deledio steps – depression was accepted as related to service – experienced stressor, marital breakdown, anxiety, alcohol misuse, binge eating – respondent conceded diabetes and hypertension if depressive condition war caused – decision set aside – remit to respondent to assessment pension rate.
Veterans’ Entitlements Act 1986 - ss9, 13, 120(1),(4), s120A(3)
Repatriation Commission v Deledio (1988) 83 FCR 82
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Milenz (2006) 93 ALD 107
WRITTEN REASONS FOR ORAL DECISION
13 September 2007
M J Carstairs, Senior Member
Dr J B Morley, RFD, Member1.Mr Allen Arthur Scott seeks pension for three medical conditions - depression, diabetes mellitus, and hypertension - which he says are related to his service in the Royal Australian Navy, in particular those parts of his service which took place in Malaya and in Vietnam.
2.These parts of Mr Scott’s service are operational service under the Veterans’ Entitlements Act 1986 (the Act) and were made up of several discrete periods of such service from 1960 to 1972, involving firstly trips undertaken between 1960 and 1962 in relation to operations with the Far East Strategic Reserve and secondly those undertaken between 1965 and 1972 in relation to the Vietnam campaign. Mr Scott also had defence service after December 1972 and until his discharge in July 1978, but does not rely on this for these claims.
3.We gave oral reasons for the decision after the hearing. On 13 September 2007 the respondent requested written reasons. These reasons now answer that request.
ISSUES
4.Given the contentions by the parties, the statutory framework provided for in the Act, and the four steps set out by the Federal Court in Repatriation Commission v Deledio[1] the issues for us to consider are:
· The diagnosis of Mr Scott’s conditions;
· Whether the material before us raises hypotheses connecting the conditions with the circumstances of Mr Scott’s service and whether there are in force Statements of Principles relevant to Mr Scott’s conditions;
· Whether the hypotheses contain one or more of the factors set out in the relevant Statements of Principles. This, in turn, requires an examination of the elements of the relevant factors of the Statements of Principles.
· Whether Mr Scott’s hypotheses can be disproved beyond reasonable doubt.
[1] (1988) 83 FCR 82 at 97-98.
5.In this application, and as the case was presented at the hearing, the key questions turned upon the claim as it related to depressive disorder. If that condition was accepted as related to Mr Scott’s service, it would follow that his other claims for hypertension and for diabetes would be determined in his favour.
LEGISLATION
6.Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to, that service, the injury or disease will be taken as being war-caused. Where a veteran has become incapacitated from a war-caused injury, s 13 of the Act makes the Commonwealth liable to pay a pension.
7.The Act imposes different standards of proof at different stages of the decision-making process where the claims relate, as they do here, to operational service. For diagnosis, the standard of proof is that set out in s 120(4) of the Act and is determined on the balance of probabilities[2]. But when the question moves from diagnosis to that of war-causation, the standard of proof applied is found in s 120(1) of the Act, which requires the decision-maker to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
[2] Benjamin v Repatriation Commission (2001) 70 ALD 622, at [54] – [55].
8.For claims made after 1 June 1994 there is the additional requirement that any hypothesis advanced concerning causation must be considered by reference to a Statement of Principles made by the Repatriation Medical Authority[3]. The result is that, once we are satisfied on questions of diagnosis on the balance of probabilities, we are required to determine any issues of causation by reference to the four step process set out in Deledio. That process proceeds by reference to factors set out in Statements of Principles relating to the particular claimed condition.
[3] See s 120A(3) of the Act.
9.We note, at this point, that there are Statements of Principles determined in respect of the three conditions claimed by Mr Scott[4].
[4] For diabetes Instrument no 11 of 2004. For hypertension, Instrument No 35 of 2003 (as amended). For depressive disorder, Instrument No 17 of 2007 - replacing Instrument No 58 of 1998 in effect at the time of Mr Scott’s claim.
DIAGNOSIS OF THE MEDICAL CONDITIONS
10.Before examining the conditions that Mr Scott claims, we observe that Mr Scott has been diagnosed with post traumatic stress disorder as a result of a trauma experienced in 1964, when he was part of the rescue team for the crash landing of a Sea Venom aircraft at HMAS Albatross, in which the pilot was incinerated. A Board of Enquiry was convened to investigate the crash. Mr Scott was under investigation for some time in relation to observed deficiencies in the operation of the fire fighting equipment used in the rescue effort.
11.Mr Scott’s post traumatic stress disorder has recently been accepted under the different set of legislative provisions that apply for military compensation purposes. The diagnosis of post traumatic stress disorder was not questioned, but it is a condition that was not the subject of the present claims, as it related to events that occurred during service that is not eligible service under the Act.
12.As to the three medical conditions that are directly in issue, the parties agree that:
§ Mr Scott suffers from hypertension – his general practitioner stating at one place that it was diagnosed in 1996[5];
§ Mr Scott suffers Type 2 diabetes - his general practitioner stating from 1996[6].
[5] T4, p 37.
[6] T4, p 50.
13.We readily accept, based on the medical evidence, that Mr Scott suffers both conditions.
14.Mr Scott also claims for a depressive disorder, separate from post traumatic stress disorder. Two psychiatrists have diagnosed a depressive disorder, which is distinct from his post traumatic stress disorder. Dr H D Eastwell first diagnosed Mr Scott as having a depressive illness in late 1964. At this time Dr Eastwell considered that Mr Scott should have received counselling for his post traumatic stress disorder after the Sea Venom crash, but did not. Dr Eastwell subsequently refined his diagnosis to a dysthymic reaction with anxiety and depressed mood[7]. However, in his oral evidence, Dr Eastwell said that he prefers the diagnosis of depression and anxiety, but observed that Mr Scott has a complex condition of several psychiatric entities. He amended his opinion on the date of onset of depression to 1965.
[7] T4, p 85.
15.Dr H E M Levien, consultant psychiatrist, appears to agree with Dr Eastwell’s view that Mr Scott has a complex condition, stating in oral evidence that at different times Mr Scott could be diagnosed with four conditions: post traumatic stress disorder; anxiety; panic disorder; and depression. However, Dr Eastwell now sees him as having post traumatic stress disorder and depression.
16.Mr Scott first saw Dr Levien on 23 May 2006[8]. Dr Levien diagnosed Mr Scott with post traumatic stress disorder, complicated by alcohol misuse, resulting from his experiences of the Sea Venom crash in December 1964. Dr Levien considered that Mr Scott suffers a major depressive disorder. Dr Levien stated in his oral evidence that by late 1965 Mr Scott would have attracted diagnoses of post traumatic stress disorder and major depressive disorder. His opinion was that the two diagnoses remain relevant now in describing Mr Scott’s conditions.
[8] Exhibit A2.
17.We note that there was no medical evidence contradicting or doubting the conclusions of the two specialist psychiatrists. Consequently, we are satisfied that Mr Scott suffers from major depressive disorder.
18.In summary, on the basis of the medical evidence, we conclude that the diagnoses of major depressive disorder, hypertension and diabetes are established to the standard of reasonable satisfaction.
MAJOR DEPRESSIVE DISORDER
19.The case for Mr Scott, as outlined in the Statement of Facts and Contentions[9], was that he experienced a category 2 stressor at the time of his marriage break-up, which aggravated his post traumatic stress disorder and either caused, or aggravated, his major depressive disorder. A category 2 stressor is defined in the Statement of Principles for Depressive Disorder by reference to negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry; one example being experiencing a problem with a long-term relationship including: the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce.
[9] Exhibit A5.
20.The term category 2 stressor then appears in the context of factor 6(f) and 6(q) as factors that can be related to service in the following ways:
(f) experiencing a category 2 stressor within the one year before the clinical onset of depressive disorder; or…
(q) experiencing a category 2 stressor within the one year before the clinical worsening of depressive disorder
21.Without doubt, on the material before us, the first two steps of Deledio as outlined in paragraph 4 above, are satisfied. We will now examine with final two Deledio steps.
22.We need to examine whether the hypotheses contains the factors listed in the Statement of Principles for the medical conditions.
23.Turning to that evidence, Mr Scott observed in his written statement[10], with reference to the Sea Venom crash, that he was not offered counselling, was experiencing panic symptoms, and was generally not coping. His marital relationship was suffering. After the Sea Venom crash he had been drinking more, and he had told Dr Levien that his marked anxiety and moodiness after the crash were affecting his marriage.
[10] T4, p55.
24.Mr Scott married his first wife at the age of 18. When she left him in 1965, he was 24 years of age and had three children under the age of 5. Mr Scott’s first trip to Vietnam was in May 1965, some six months after the Sea Venom crash. He recalled he had seven trips to Vietnam between May 1965 and June 1967. The respondent recorded six in that period[11]. Mr Scott said the first trip to Vietnam (27 May – 26 June 1965) was uneventful, but when he returned to Australia his wife met him at the wharf and told him she had met someone else. While he was back in Australia they discussed the future of their marriage, and he thought the problems were resolved. Mr Scott took the opportunity, while he was still in Australia, to visit the navy chaplain. He asked for a compassionate posting, but was refused.
[11] Exhibit R1
25.Nevertheless, when he returned to Vietnam on the second trip (14 September – 20 October 1965) Mr Scott believed he and his wife had resolved their problems. However, when he arrived at Vung Tau, he received a letter from his wife telling him she had left him. Mr Scott said he was devastated because he was very much in love with his wife. His immediate reaction on receiving the news was to drink a bottle of aftershave mixed with cordial. He said he was upset and angry and started to drink more alcohol than after the Sea Venom crash. In his oral evidence Mr Scott observed that after the crash he had been drinking to relieve his anxiety but his drinking really increased after his marriage break-up.
26.Mr Scott reported to Dr Levien that he was increasingly misusing alcohol. He said in his oral evidence that during later years of his service he was drinking so much that he was thrown out of pubs and had been gaoled in Sydney on two occasions in 1966 for gross intoxication. Mr Scott also said that after his marriage break-up he was binge eating and this has been a problem for him ever since. He has made many attempts to lose weight but he regains whatever he loses.
27.Dr Levien said that Mr Scott had suffered alcohol misuse in the past but had the good sense to desist since 2002. He also offered the opinion in his written report that an aggravation of Mr Scott’s psychiatric illness was perhaps brought about by alcohol misuse and Mr Scott not recognising at the time that there may be appropriate psychological treatments for his level of distress[12].
[12] Exhibit A2
28.Dr Levien said that when he started treating Mr Scott (he previously being under the care of Dr Eastwell) he had increased Mr Scott’s dose of the antidepressant Efexor from 150 mg daily to 300 mg daily because the lower dose, in his opinion, was not robust enough. Dr Levien said that the high dose of Efexor accounted for Mr Scott’s depressive symptoms being in remission. Dr Levien said that Dr Eastwell had prescribed Largactil for Mr Scott’s post traumatic stress disorder and Dr Levien increased that dosage from 25mg to 200mg.
29.We have already noted Dr Levien’s opinion that Mr Scott had a separate psychiatric diagnosis of a major depressive disorder dating from late 1965 and continuing to this time. Dr Eastwell’s oral evidence was to the same effect. Dr Levien acknowledged that post traumatic stress disorder is associated with depression symptoms, but Dr Levien was unequivocal in his opinion that in Mr Scott’s case the diagnosis stood on its own. Dr Eastwell’s oral evidence lent support to that view. Dr Levien said in oral evidence that the onset of depression was the breakdown of the marriage, whereas in his report dated 24 May 2007[13] he expressed the process this way:
He thus experienced a major increase in symptomatology [Dr Levien's emphasis] whilst on active service in 1965. In addition his post traumatic stress disorder and major depressive disorder had further contributions to their becoming a chronic condition – not only through the cessation of his marriage but also relating to a state of chronic anxiety and apprehension during his active service overseas in Vietnam from 1965 onwards…
I therefore feel on clinical examination, history taking that there was a clinical worsening of …(a) post traumatic stress disorder and (b) major depressive disorder following upon his receipt in 1965 that his wife was leaving the marriage. I feel this event together with other contributory events in military service whilst in Vietnam…together make up a 'Category II stressor within the one year before the clinical worsening of the Depressive Disorder’..
[13] Exhibit A3
30.Dr Eastwell’s oral evidence lent support to the conclusion that with the breakdown of the marriage in 1965 there was an aggravation of Mr Scott’s depression.
31.Dr Levien indicated in his written reports that Mr Scott’s major depressive disorder was aggravated by his wife leaving him in circumstances where, being away on overseas service, he couldn't do anything about it. Dr Levien was less clear about this being a case of aggravation of the condition, where we understood him to say that the breakdown of the marriage led to the onset of depression, rather than aggravating an existing depressive condition.
32.Dr Levien acknowledged in cross-examination that Mr Scott had recovered from his first marriage break-up and had moved on with his life, however he firmly maintained that Mr Scott’s depression was worse than it would otherwise have been because of the circumstances of the marriage break up. Dr Levien was firmly of the opinion that both psychiatric conditions persist to this day, although Dr Levien acknowledged that Mr Scott was less affected now by his major depressive disorder than by his post traumatic stress disorder. Dr Levien said, however, that ceasing Efexor would result in more florid symptoms of a depressive disorder re-emerging. He said that Mr Scott would be pretty unwell without medication.
33.Referring back to the factors set out in the Statement of Principles, we concluded that the hypotheses raised here are reasonable. The authorities make plain that the material must point to the hypothesis, which must be in accordance with, or “fit”, the factor or factors in the Statement of Principles. There was no doubt in our minds that the breakdown of the marriage came within the definition of a category 2 stressor provided for in the Statement of Principles and fits the description of a negative life event, the effects of which are chronic and result in ongoing distress. Mr Scott’s evidence about his distress and its ongoing nature was not seriously challenged. Some of the evidence before us pointed to clinical onset of depressive disorder within a year of his experience of a category 2 stressor (factor 6f). Some of the evidence pointed to clinical worsening of depressive disorder (factor 6q). There was no medical evidence that suggested any other explanation.
34.We should at this point comment on the aspects of clinical onset and clinical worsening in the context of the evidence as a whole. Both are matters that require the exercise of clinical judgement by medical practitioners, a point recently highlighted by the Federal Court in Repatriation Commission v Milenz[14]. In matters of this kind it will be usual that the event took place some time ago, and the evidence will rarely be available that would enable exact findings on the clinical onset or clinical worsening. Clinical judgement will involve drawing inferences, a matter to which Dr Levien referred in his oral evidence when he referred to the difficulties of forming these views retrospectively.
[14] (2006) 93 ALD 107.
35.We have already observed that some of the medical evidence pointed to clinical onset and some to clinical worsening. The evidence, taken as a whole, probably pointed more strongly to the process being that of clinical worsening of depressive disorder. However, in our view, the evidence before us and the presence of alternative factors within the Statements of Principle allows both for clinical onset and clinical worsening. This suggests some degree of imprecision, bearing in mind that the Tribunal is not required to find facts at the third step of the Deledio process.
36.In relation to the fourth step from Deledio, we must decide whether we are satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Scott’s major depressive disorder was war caused on one of the bases provided for in s 9 of the Act. The claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved beyond reasonable doubt, or the truth of a fact inconsistent with the hypothesis is proved to that standard. We were not satisfied beyond reasonable doubt that there was no sufficient ground for determining that Mr Scott’s depression is war-caused. We accepted his evidence as truthful. It was not contradicted by other evidence. His evidence was supported by the evidence of the two psychiatrists who have treated him and whose evidence enables us to conclude that Mr Scott suffered a major depressive condition in 1965. This was either a new condition or the worsening of an existing condition. The condition was related to his operational service, through the experience of a stressor that occurred while he was rendering that service.
HYPERTENSION
37.The respondent conceded that if we found that Mr Scott’s depressive disorder was related to his service then factor 5(o) in the Statement of Principles for Hypertension, which provides:
5(o) suffering from a clinically significant depressive disorder for the six months immediately before the clinical onset of hypertension;
would be satisfied.
38.Mr Scott’s blood pressure history extracted from service medical records was summarised[15]. The Statement of Principles for Hypertension defines hypertension as permanently elevated blood pressure evidenced by systolic readings at or above 140mmHg or diastolic readings at or above 90mmHg. Mr Scott had systolic readings at or above 140 in 1958, 1970, 1978 and 1983, the last being recorded on the first occasion that he attended at the Tingalpa Family Health Care Centre, where he has continued as a patient.
[15] T4, p 92.
39.Mr Scott’s evidence was that he was told he had high blood pressure during his service but that it did not then warrant medication. He said that when he left the navy his doctor told him to lose weight, and he commenced hypertensive medication some 10-15 years ago. His general practitioner indicated at one place in the documents that this was in 1996. He also confirmed that Mr Scott had a systolic reading of 150/90 in 1983 and thereafter his blood pressure had been fluctuating.
40.We agree that factor 5(o) of the Statement of Principles for Hypertension is met (the third step of Deledio) and that the evidence is such that there is no evidence refuting the conclusion that hypertension is war-caused (fourth step of Deledio).
DIABETES
41.The respondent conceded that if we concluded that Mr Scott’s depression was related to his service and led to increased eating and drinking, then Mr Scott’s diabetes would be related to service on the basis of factor 5(b) in the Statement of Principles for Diabetes Mellitus[16] :
(b) in relation to type 2 diabetes mellitus, being obese for a period of at least five years before the clinical onset of diabetes mellitus; …
[16] Instrument No. 11 of 2004
42.There were numerous entries in Mr Scott’s service medical records indicating his problem with obesity. In 1969 Mr Scott’s weight was 200lbs and remained high thereafter. Mr Scott relates his binge eating to his marriage break-up and the evidence points to his weight increasing constantly from that time. Mr Scott’s hypothesis is that his reaction to the marriage break-up (and the resultant depression) was binge eating. Dr Senewiratne observed:
Getting weight down in any person is difficult but in someone with a depressive illness can be near impossible...[17]
[17] T4, p43
43.This hypothesis fits the template in the Statement of Principles for Diabetes Mellitus, as the obesity takes its relationship to service as being a reaction to a psychiatric condition that we have found to be related to service. The claim for diabetes therefore succeeds.
DECISION
44.The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s depressive disorder, diabetes mellitus and hypertension are war-caused with effect from 24 December 2004, being a date taking into account Mr Scott’s informal claim lodged on 24 March 2005. The Tribunal remits to the respondent the assessment of the rate of pension payable to the applicant
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M J Carstairs and Dr J B Morley, RFD, Member
Signed: .....................................................................................
Eleanor O’Gorman, AssociateDates of Hearing 6 September 2007, 13 September 2007
Date of Decision 13 September 2007
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Sciacca & Associates
Solicitor for the Respondent Departmental Advocate
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