Stuth and Repatriation Commission
[2013] AATA 646
•12 September 2013
[2013] AATA 646
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/3090
Re
William Stuth
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Dr Ion Alexander, MemberDate 12 September 2013 Place Sydney The Tribunal affirms the decision under review. Mr Stuth’s rate of disability pension should continue at 30% of the general rate of pension.
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Ms N Bell, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – whether suffers from psychiatric condition – whether condition war caused – standard of reasonable satisfaction – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), s 120(4)
CASES
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Deledio (1998) 83 FCR 82
Summers v Repatriation Commission (2012) 293 ALR 86; [2012] FCAFC 104Repatriation Commission v Warren (2007) 95 ALD 606; [2007] FCA 866
SECONDARY MATERIALS
Statement of Principles concerning Anxiety Disorder No. 101 of 2007
Statement of Principles concerning Alcohol Dependence and Alcohol Abuse No.1 of 2009
Statement of Principles concerning Post Traumatic Stress Disorder No. 5 of 2008
REASONS FOR DECISION
Ms N Bell, Senior Member
Dr Ion Alexander, Member
William Stuth served in the Australian Army between 20 April 1966 and 19 April 1968. He had operational service in Vietnam between 30 June 1967 and 20 February 1968. He receives a disability pension at 30% of the maximum rate in respect of his accepted conditions of sensorineural hearing loss, bilateral tinnitus and solar keratosis.
He made a further claim in respect of anxiety disorder, alcohol dependence and pilonidal sinus. The Repatriation Commission rejected his claim and contends that he does not suffer from any psychiatric condition and, if he did, the material before the Tribunal does not point to a hypothesis that conforms to the relevant Statements of Principles. As to his pilonidal sinus, that diagnosis is not in dispute but the Commission contends that there is no material before the Tribunal that points to its having been war caused.
The issues for us to consider are:
(i)What, if any, psychiatric condition(s) does Mr Stuth suffer from?
(ii)Are Mr Stuth’s conditions war caused?
WHAT, IF ANY, PSYCHIATRIC CONDITION(S) DOES MR STUTH SUFFER FROM?
Through the course of proceedings at the Veterans’ Review Board and in this Tribunal Mr Stuth has raised, as possible diagnoses, anxiety disorder, depression, alcohol abuse and alcohol dependence.
In Repatriation Commission v Bawden [2012] FCAFC 176 the Full Court said:
While there is no onus on a veteran to attach a label to the disease or injury manifest in his or her symptoms, if the disease or injury is alleged to be PTSD, the question of diagnosis is squarely raised and must be resolved.
We consider that this observation applies to all of the diagnoses urged on the Tribunal by Mr Stuth at different stages in these proceedings. We must reach our conclusion as to the kind of disease(s) suffered by Mr Stuth to the standard of reasonable satisfaction. In this regard we note the clear distinction drawn by the Full Court in Bawden between questions of diagnosis, all aspects of which are to be determined to the standard of reasonable satisfaction or on the balance of probabilities, and, on the other hand, questions of causation which are to be determined in accordance with the steps explained by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82. As the Full Court in Bawden said, that four step process is not concerned with the issue of whether the disease or injury occurred; rather, the question of diagnosis is governed by section 120(4) of the Veterans’ Entitlements Act 1986 which requires determination to the standard of reasonable satisfaction.
We also had regard to the Full Court’s judgment in Summers v Repatriation Commission (2012) 293 ALR 86; [2012] FCAFC 104 in which the Court said that the question of whether Mr Summers had PTSD was “at least on its face, one of diagnosis involving expert medical opinion.” After extracting the definition of PTSD in clause 3 of the Statement of Principles concerning Post Traumatic Stress Disorder No. 5 of 2008, the Court said:
For the Tribunal to be satisfied that Mr Summers suffered from PTSD it therefore had to be reasonably satisfied of the six matters in sub-cll (b)(A)-(F).
In addition, we had regard to the judgment of the Court in Repatriation Commission v Warren (2007) 95 ALD 606 [2007] FCA 866; in which Kiefel J said:
The function of the SoP, in general terms, is to identify the minimum factors which must be present in the circumstances of the veteran’s case, to provide the necessary linkage between the disease suffered and operational service. The factors necessarily refer to the disorder in question. The principal purpose of the definition of each of PTSD and alcohol dependence is to permit a determination as to whether the SoP applies to the condition as found by the Tribunal, presumably upon the basis of clinical diagnosis. The diagnostic criteria for the disorders in the SoP are said to be ‘those specified in DSM-IV, and are as follows’. The criteria are intended as part of the definition for the purpose of the application of the SoP.
The anterior, or threshold, question for the Tribunal is whether the veteran suffers from the disease as claimed. It is a distinct and separate statutory question, in the nature of a precondition to any entitlement to a pension. There is no provision of the VEA which expressly requires the Tribunal to have regard to the SoP criteria in determining this question. The requirement that the Tribunal be reasonably satisfied that the veteran suffers from the claimed disease will usually require medical opinion. A clinical diagnosis of a condition classified under DSM-IV would necessarily have regard to that Manual and the criteria provided by it.
We note that the above paragraphs of the judgment in Warren were quoted in full by the Full Court in Summers.
From these statements of the Court we take that we must:
·decide the question of what diseases or injuries are suffered by Mr Stuth as a separate question that is a precondition to any entitlement to pension;
·determine all aspects of that question to the standard of reasonable satisfaction;
·determine the question by reference to evidence of clinical diagnosis by medical experts that have, in turn, had regard to the diagnostic criteria provided for the relevant disease by DSM-IV and which in the cases of PTSD and anxiety and alcohol related disorders have been adopted in the definition part of the relevant SoPs.
Mr Stuth said that when he first returned from Vietnam he did experience some problems with his job and girlfriend, and felt isolated, but at the time he did not attribute those problems to the war. He said, “I was under the illusion that Vietnam did not affect me.”
Mr Stuth said his problems have existed for some years. He said his wife tells him that he has been restless “for years”. He did not recognise the problem or know of the existence of the Department of Veterans’ Affairs until a Vietnam Veterans’ reunion. He met another serviceman who “pointed out” Mr Stuth’s condition. Mr Stuth then began his application to the DVA.
Mr Stuth said he is very isolated and has “never made any friends in (his) life” and does not really talk to anyone (“I get into a cave”). He mentioned that he rarely sees his old friends and does not enjoy the war movies and “war things” that he used to.
He said he feels very moody and drinks and gambles to deal with the “reality of the situation”. He said that he often feels violent, and has continual thoughts of violence and vengeance. He is worried about his potential for violent behaviour although he said this has only happened once soon after returning from Vietnam; he said he also hits the wall from time to time.
Mr Stuth said that within a year or two of returning from Vietnam (1968 or 1969) he got a DUI and lost his license. He has not had any other offences related to drink driving but describes himself as having been very lucky because he was and is a heavy drinker. He said he continues to drink beer: about 3 – 4 stubbies or schooners at the club.
Mr Stuth said his drinking does not affect him physically or affect his ability to do work. But he said he gets into trouble with his creditors and with the ‘tax people’ because he does not pay his bills on time. He does not like to open the mail when it comes and he will come home and just go to sleep. He said his wife is bothered by his drinking – she asks him to sleep in the other room and describes him as a “rollercoaster”.
Mr Stuth said he would go out with friends and have a drink when he was growing up but that he did not drink as much as he does now, or to excess. He said he started to drink more when he went to Vietnam and has kept drinking at that higher level since he returned. Mr Stuth said he goes to the club and drinks by himself and often drives himself home.
Mr Stuth has two sons and has been married since 1978. For the past seven years, Mr Stuth (Bill) and his 29 year old son, Ben, have worked together as electricians: Bill and Ben the Electrical Men.
Mr Stuth said his son will run the business but he does not think about retirement because he can only afford to live day by day. He said he feels “alright in the head” when he’s working with Ben; but that he feels pressure that he has to work, and can feel “a bit mad in the head” and drinks when he stops work.
Mr Stuth said he had some “drama” with his children when they were younger but now he has a good family life although he says he can be isolated and intolerant.
Mr Stuth called himself a “survivor”. He said his annual income rarely amounts to more than $17,000 and that his wife is the breadwinner. Although he has worked continuously since 1971, he only has enough business to support himself and relies heavily on his wife to earn for the family.
Mr Stuth said he feels that it is not healthy or responsible to work in the way that he does – structuring his work and his hours to live day to day. But he said that he cannot work a 40 hour week and he needs the flexibility so that he can “cope with the life” that he has.
Mr Stuth referred to a “struggle in the mind”. He said he reads ‘new age’ books to try to practice being more spiritual. He does this to try to stop violent thoughts going through his head. He gave an example of imagining himself reacting very violently to an attacker in a home invasion or similar scenario.
Mr Stuth said he takes Valium for back pain but does not like to take many medications. He first sought help in 2005 when he submitted his DVA application. He was seeing Dr Koller but said he does not have regular treatment now. He said Dr Koller prescribed a medication which he took for about a year. He said he did not notice any effect but his wife noticed a difference when he discontinued his medicine quite suddenly.
Other than seeking assistance in 2005, Mr Struth did not see any psychiatrists until he was referred to Dr Smith by the DVA as part of the claim process.
Mr Stuth expressed concern that Dr Smith’s assessment is not a fair reflection of him and his condition. Dr Smith was late to the first appointment and his office subsequently lost Mr Stuth’s file. Mr Stuth said he did not have confidence in Dr Smith and was reluctant to “open up” to him.
In June 2006, Dr Selwyn Smith, psychiatrist, found no significant psychopathology in Mr Stuth and considered, instead, that his isolation and difficulty with interpersonal relationships is longstanding and constitutional. His mental state examination was unremarkable. He denied any episodes of depression or anxiety, although he said he ruminated over his military service and questioned its purpose. He gave a history of consuming three to four beers plus wine at home.
In March 2007 Dr Karl Koller diagnosed generalised anxiety disorder and alcohol dependence, without reference to diagnostic criteria. He reported the following symptoms:
·restless sleep;
·dreams about being shot, flying and being locked up;
·worrying, dwelling on things and living on the edge;
·tension and tension headaches;
·forgetfulness;
·irritability and fantasies of hitting people;
·dangerous risk taking (described by Dr Koller as “suicidal ideation”).
Dr Koller reported that Mr Stuth drinks three beers and some wine each day and sometimes doubles that amount, having commenced to drink in Vietnam. He said he has attempted to stop drinking but has failed and that he lost his licence in the 1970s because of drunk driving. He continues to “take chances” when he drives.
In September 2009 Dr Graham Altman diagnosed generalised anxiety disorder with an associated major depressive disorder and alcohol abuse. He did not address diagnostic criteria specifically but described the following symptoms, reported by Mr Stuth to have persisted since Vietnam:
·introversion;
·being a loner;
·excessive worry;
·on edge and keyed up;
·sleep disturbance;
·irritability;
·exaggerated startle reaction;
·low mood;
·low libido;
·diminished energy;
·impaired concentration;
·low confidence and motivation;
·suicidal thoughts.
I note that a number of these symptoms, including exaggerated startle response and suicidal thoughts, were not mentioned to any other psychiatrist who examined Mr Stuth.
Dr Altman reported that Mr Stuth drinks four to five schooners of beer and two glasses of wine per day. He also reported that his alcohol intake prior to Vietnam was minimal.
Dr Altman said Mr Stuth is experiencing major difficulties at work, that he “just like to be by myself”, that he gets “aggro and moody” and that approximately 15 years ago he reduced his working hours to 20 – 25 per week because he “felt like screaming – aggro and snappy”.
In a report dated 30 April 2012, Dr Anthony Dinnen, psychiatrist, diagnosed generalised anxiety disorder and alcohol abuse. He made no reference to diagnostic criteria, in the relevant SoP or in DSM-IV. He noted Mr Stuth’s current symptoms as:
·a feeling of descending into a pit of hopelessness which can last for two weeks;
·a sense of failure about his work;
·difficulty sleeping;
·dreams of a cook who he thought might have been a Viet Cong;
·fatigue; and
·a disinclination to see anyone.
Dr Dinnen reported that these feelings were more marked in Mr Stuth’s mid-twenties and especially bad when he was 30.
As to alcohol, Dr Dinnen reported that Mr Stuth’s current intake is about two stubbies of beer and about two to four wines per day. He drinks every day. He drives home from the club, under the influence of alcohol, taking the back streets. He likes the feeling of being a bit drunk.
Dr John Roberts, psychiatrist, considered that Mr Stuth suffers from no symptomatology that would permit a diagnosis of a psychiatric condition, including post traumatic stress disorder, generalised anxiety disorder, depression, alcohol abuse or alcohol dependence. He found that the physiological concomitants of anxiety, including muscle tension, heart palpitation or pounding, increased perspiration or cold sweat and exaggerated startle response were absent, with the exception of some respiratory symptomatology
Dr Roberts reported that he had taken a history from Mr Stuth that he had wanted to join the Army Reserve after discharge, that he did not dwell on Vietnam and that prior to his service he experienced being “pissed” and had hangovers. Dr Roberts also commented on the contents of “Psychological Records” produced by the Department of Defence which include an assessment that Mr Stuth “could become a problem with authority figures” and that he is an “individual who resents authority and has very few ties to his family e.g. could not give ages of parents except within a ?time year range [sic]” and described Mr Stuth as “being an irresponsible youth with a lust for speed and anti-conventional acts”. Dr Roberts considered that this was suggestive of problems arising prior to Mr Stuth’s service in Vietnam.
Dr Roberts also commented, in oral evidence, in the context of Mr Stuth’s drinking, that while his performance at work may be suboptimal, he is generally fulfilling his obligations at work and in the business he now runs with his son. He considered Mr Stuth to be functioning reasonably well.
The diagnostic criteria for generalised anxiety disorder as is set out, as drawn from DSM-IV, in Statement of Principles concerning Anxiety Disorder No. 101 of 2007 as follows:
"generalised anxiety disorder" means a psychiatric disorder (derived from DSM-IV-TR) with the following features:
A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:
(1) restlessness or feeling keyed up or on edge
(2) being easily fatigued
(3) difficulty concentrating or mind going blank
(4) irritability
(5) muscle tension
(6) difficulty falling or staying asleep, or restless unsatisfying sleep; and
D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder
Of the psychiatrists who have diagnosed Mr Stuth as having a psychiatric condition, none have offered a diagnosis by reference to the above diagnostic criteria. However, Dr Altman’s diagnosis does make scant reference to a range of symptoms that mostly fall under the diagnostic criteria of DSM-IV as set out in the SoP. The difficulty with this is that while Mr Stuth’s symptoms have been reported on by five psychiatrists over the last eight years, Dr Altman is the only examiner to report clinically significant distress or impairment in important areas of functioning – “major difficulties at work”.
This contrasts with Mr Stuth’s evidence of a good family life in a marriage of 35 years and a business running continuously over a similar period, for the last seven years with his son. While Mr Stuth’s contributions to the business may be less than desired, he maintains both the business and the arrangement with his son and both continue to operate. Mr Stuth’s reports of his symptoms to various experts has been variable and in parts inconsistent. He described himself to the Tribunal as a “survivor”, somewhat chaotic and irresponsible, sometimes troubled, but managing to fulfil his family and work obligations.
For these reasons, we prefer the opinions of Drs Smith and Roberts that Mr Stuth does not suffer from a psychiatric condition.
The diagnostic criteria for alcohol dependence, drawn from DSM-IV, are set out in Statement of Principles concerning Alcohol Dependence and Alcohol Abuse No.1 of 2009. We note that the criteria for alcohol abuse make it clear that diagnoses of alcohol dependence and alcohol abuse must be exclusive of each other. In particular, the diagnostic criteria for alcohol abuse require that the symptoms have never met the criteria for alcohol dependence. (our emphasis)
The criteria for alcohol dependence are:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1) Tolerance, as defined by either of the following:
(a) a need for markedly increased amounts of alcohol to achieve intoxication or desired effect; or
(b) markedly diminished effect with continued use of the same amount of alcohol.
(2) Withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for alcohol; or
(b) the same (or a closely related) alcohol is taken to relieve or avoid withdrawal symptoms.
(3) The alcohol is often taken in larger amounts or over a longer period than was intended.
(4) There is a persistent desire or unsuccessful efforts to cut down or control alcohol use.
(5) A great deal of time is spent in activities necessary to obtain the alcohol, use the alcohol or recover from its effects.
(6)Important social, occupational or recreational activities are given up or reduced because of alcohol use.
(7) The alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol; (e.g. continued drinking despite recognition that an ulcer was made worse by alcohol consumption).
The criteria for alcohol abuse are:
A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:
(1) Recurrent alcohol use resulting in a failure to fulfill major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to alcohol use; alcohol-related absences, suspensions, or expulsions from school; neglect of children or household).
(2) Recurrent alcohol use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by alcohol use).
(3) Recurrent alcohol-related legal problems (e.g., arrests for alcohol-related disorderly conduct).
(4) Continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the alcohol (e.g., arguments with spouse about consequences of intoxication, physical fights).
B. The symptoms have never met the criteria for alcohol dependence.
In spite of the diagnosis made by Dr Koller, there is no evidence of Mr Stuth meeting or having met the diagnostic criteria for alcohol dependence, ie, there is no evidence of tolerance, withdrawal, increasing consumption, efforts to cut down (apart from a brief mention in Dr Koller’s report), recurrent alcohol related legal problems or failure to fulfil major obligations at work or home.
Drs Koller and Dinnen diagnosed alcohol abuse but made no reference to the diagnostic criteria.
As to alcohol abuse, Mr Stuth’s evidence was that he will sometimes drive home from the club after a few beers. Strictly, this satisfies diagnostic criteria 2 above. He also gave evidence of his wife sending him to the spare room if he comes home drunk. It is arguable that this amounts to a “problem” within the meaning of the diagnostic criteria.
However, we are not satisfied that Mr Stuth’s pattern of alcohol consumption leads to clinically significant impairment or distress. In this regard we note the oral evidence of Dr Roberts that a blood alcohol concentration after a few beers may exceed .05% but would not necessarily result in hazardous driving. In this regard, we note Mr Stuth’s evidence that if he drinks and drives home from the club he takes the back streets and that when he went to an ANZAC march he had a lot to drink and decided to stay over at a friend’s house rather than drive home that day. His only conviction for driving under the influence of alcohol was in the 1970s.
On balance, we prefer the opinions of Drs Smith and Roberts. We do not consider that Mr Stuth meets the diagnostic criteria for either alcohol dependence or alcohol abuse, though it is clear that he drinks to excess.
ARE MR STUTH’S CONDITIONS WAR CAUSED?
It follows from these conclusions that there are no psychiatric conditions suffered by Mr Stuth and for which war causation should be considered. As to Mr Stuth’s pilonidal sinus, he has raised no hypothesis of war causation and provided no material pointing to any hypothesis.
ASSESSMENT
At the conclusion of the hearing the current assessment of Mr Stuth’s pension was canvassed and it was noted by the representative of the Commission that it had been some time since Mr Stuth’s accepted conditions of bilateral sensorineural hearing loss, tinnitus and solar keratosis had been medically assessed. Mr Stuth currently receives disability pension in respect of these conditions at 30% of the general rate.
Arrangements were made for Mr Stuth to be reassessed in respect of these conditions. He was examined and assessed by his own doctor and the relevant forms were completed and submitted to the Commission.
The Commission made an assessment, summarised and provided to the Tribunal and to Mr Stuth as follows:
“On 12 March 2013, a departmental medical officer completed an interim combined impairment report regarding the Applicant. This is attached.
This report assesses the total medical impairment as 10 points under the Guide to the Assessment of Rates of Veterans’ Pensions, (GARP).
The Respondent notes previously, the Veterans’ Review Board, (VRB), in its decision dated 5 July 2011, determined the total medical impairment as 15 points under GARP.
The Respondent says the difference between the two rounded figures concerns the assessment of skin disorders.
The Respondent says that an accurate reading of Dr Jammal’s notes indicates that a figure of 5 points for skin disorders, as previously given in 2008 and by the VRB, is suitable. The Departmental medical officer assessed this as 2 points.
Thus the Respondent submits the correct total medical impairment is 15 points.
The Respondent submits that a careful reading of Mr Stuth’s Lifestyle Questionnaire results in a lifestyle rating arising from accepted disabilities of 2.
The Respondent notes that this is an increase from the previous rating of 1.
The Degree of Incapacity for Mr Stuth arising from accepted disabilities is therefore 30% (15,2).
The Respondent submits that the Applicant’s rate of pension should be continues at 30% of the general rate.”
We have no reason to disagree.
DECISION
The Tribunal affirms the decision under review. Mr Stuth’s rate of disability pension should continue at 30% of the general rate of pension.
I certify that the preceding 57 (fifty -seven) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member, Dr Ion Alexander, Member. .......[Sgd].................................................................
Associate
Dated 12 September 2013
Dates of hearing 19 August 2012 Date final submissions received 11 July 2013
Advocate for the Respondent T O'Reilly, DVA In-house advocacy
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