Sullivan and Repatriation Commission

[2008] AATA 1140

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1140

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3079

VETERANS’ AFFAIRS  DIVISION		)
Re		WILLIAM SULLIVAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date19 December 2008

PlaceCanberra

Decision The decision under review is affirmed.

..............Signed................................

Mr S. Webb, Member

CATCHWORDS

VERTERANS' ENTITLEMENTS - operational service in Vietnam – Defence service - claim for anxiety disorder and depressive disorder – Defence service claim conceded – diagnosis of post traumatic stress disorder asserted – diagnosis not made out – cyclothymic disorder – generalised anxiety disorder – no reasonable hypothesis connecting these conditions to operational service – decision affirmed

Veterans' Entitlements Act 1986 ss 9, 70, 119, 120, 120A

Peacock v Repatriation Commission (2007) 161 FCR 256

Repatriation Commission v Warren [2008] FCAFC 64

Benjamin v Repatriation Commission (2001) 70 ALD 622

Repatriation Commission v Bey (1997) 79 FCR 364,

Repatriation Commission v Delidio (1998) 83 FCR 82

Dunlop v Repatriation Commission [2003] FCAFC 201

East v Repatriation Commission (1987) 16 FCR 517

Connors v Repatriation Commission (2000) 59 ALD 61

Mines v Repatriation Commission (2004) 86 ALD 62

Masliczek v Repatriation Commission [2008] FCA 1535

Lees v Repatriation Commission [2002] FCAFC 398

Repatriation Commission v Norton [2008] FCA 1132

REASONS FOR DECISION

19 December 2008 Mr S. Webb, Member         

1.      William Sullivan served in the Royal Australian Air Force and was posted as a cook to the Australian base at Vung Tau in Vietnam. Over time he has complained of psychiatric symptoms and has lodged a number of claims. This application concerns one such claim that Mr Sullivan’s anxiety and depression was caused by his service in the RAAF, or by his operational service in Vietnam.

2.      At the outset, Mr Sullivan’s representative, Mr John Orr, informed me that the case concerned Post Traumatic Stress Disorder (PTSD) and related sequellae within the terms of Statement of Principles (SoP) Number 5 of 2008 in relation to the period of Mr Sullivan’s operational service, which is not disputed.  In Mr Orr’s submission, if PTSD is not established then that is the end of the matter, no other SoP applies and nothing further is pressed. This concession is attended by difficulty. Mr Sullivan’s claim concerns Anxiety Disorder and Depressive Disorder.[1] There are in force SoPs concerning each of these conditions. Mr Orr’s contention is that the correct diagnosis is PTSD, in consequence of which the Tribunal need not concern itself with any other condition. Mr Orr’s purported concession, however, does not relieve the Tribunal of its obligation to make the correct or preferable decision on all of the material placed before it.[2]

[1] T21 folios 246 and 247 and T22 folios 255 and 256.

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

3.      It is apparent to me that this dispute has at its heart three key questions concerning Mr Sullivan’s claimed psychiatric disease; diagnosis, clinical onset and causation. The question of diagnosis is vexed; the medical evidence indicates that Mr Sullivan’s presentation is complex and medical minds differ as to the correct diagnosis of his symptoms. It appears to me that Mr Orr’s purported concession has a misapprehension at its heart. That is, if Mr Sullivan suffers from Anxiety Disorder or from Depressive Disorder the Tribunal need not consider any applicable SoP for either condition as, by Mr Orr’s concession, Mr Sullivan cannot satisfy the temporal elements of those SoPs, relating the onset of either condition to the circumstances of his relevant service, unless the anxiety or depression is a sequellae to PTSD. That is incorrect.

4.      The Tribunal must approach its deliberations concerning these matters in a manner that is consistent with the statutory requirements of the Veterans’ Entitlements Act 1986 (the Act) and the established authorities.[3] Thus, first, the Tribunal must direct itself to preliminary questions concerning the kind of service and issues of diagnosis. These matters are to be determined applying the reasonable satisfaction standard of proof.[4] Secondly, the Tribunal must determine whether there is a reasonable hypothesis connecting the diagnosed condition with the circumstances of the veteran’s particular service. As is well understood, if there is in force an SoP for the particular condition, the hypothesis of connection will only be reasonable if it is consistent with the terms of the applicable SoP.[5] One cannot simply approach these matters in the manner contended for by Mr Orr, commencing with the terms of an SoP and an assessment of the likelihood of success in relation to those terms.

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

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

[5] Veterans Entitlements Act 1986 s 120(3), 120A(3).

5.      Thus I will proceed to consider Mr Sullivan’s psychiatric symptoms and presentation over time and will determine whether or not these symptoms are consistent with a disease that is war-caused for the purposes of s 9 of the Act. [6]

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

6.      Mr Orr informed me that no claim was pressed in relation to Mr Sullivan’s eligible Defence service; in effect that aspect of Mr Sullivan’s original claim was foregone. I understand, therefore, that Mr Sullivan is not proceeding with his claim for Anxiety State and/or Depressive Disorder in relation to any eligible Defence service after 7 December 1972 pursuant to s 70 of the Act. It is plain enough that both parties have proceeded on the basis of that concession, and evidence relevant to that aspect of Mr Sullivan’s original claim was not adduced during the hearing. That being so, I will not proceed to determine the aspects of Mr Sullivan’s claim concerning his eligible Defence service.

7.      The period of Mr Sullivan’s operational service in Vietnam is not in dispute: from 13 August 1970 to 12 August 1971. Having considered the relevant documents I am reasonably satisfied that those dates are correct and so find.

8.      I note that Mr Sullivan is presently receiving 100 percent of the General Rate of Disability Pension. The parties requested that the assessment of the rate of pension payable to Mr Sullivan be remitted to the Commission if his psychiatric condition is found to be war-caused.  That will be done. The earliest date of effect is 22 January 2005, being three months prior to the date on which Mr Sullivan lodged the claim.

9.      The issues remaining for determination by the Tribunal are:

(a)From what psychiatric condition or conditions does Mr Sullivan suffer?

(b)Is a hypothesis connecting one or more of these conditions with the circumstances of Mr Sullivan’s operational service raised on the material that is before the Tribunal?

(c)Is an applicable SoP in force?

(d)Is the raised hypothesis consistent with the terms of the SoP?

(e)Is there material to establish, beyond reasonable doubt, that there is no sufficient ground for determining that the condition is war-caused?

from what psychiatric condition or conditions does Mr Sullivan suffer?

10.     Mr Orr asserts that Mr Sullivan suffers from PTSD. This proposition draws support from the evidence of Dr Saboisky, a consultant psychiatrist, Mr Apathy, Mr Sullivan’s former treating psychologist (now deceased), and Dr Horsley, a Department of Veterans’ Affairs doctor. Furthermore, in Mr Orr’s submission, if Mr Sullivan suffers from an Anxiety Disorder or a Depressive Disorder, those Disorders are sequellae to PTSD.

11.     These submissions, in my opinion, are not made out.

12.     Questions of diagnosis are to be determined applying the reasonable satisfaction standard of proof.

13.     The difficulty attending upon the question of diagnosis in this case has been commented upon by many of the examining psychiatrists.

14.     Considering the medical evidence and the relevant sections of the Diagnostic and Statistical Manual of Mental Disorders (DSM) [7], it appears to me, on the balance of probabilities that Mr Sullivan suffers from an affective mood disorder in the form of Cyclothymic Disorder and an anxiety disorder in the form of a Generalised Anxiety Disorder. Making that finding I prefer the evidence of Dr Douglas, Dr Cullen, Dr Lewin, Dr Burgess, Dr Jude and Dr Morris to the evidence of Mr Apathy (in part), Dr Saboisky and Dr Horsley.

[7] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, 2003.

15.     On 29 May 2008 Dr Horsley, a medically qualified SES Liaison Officer with the Department of Veterans’ Affairs, wrote a letter to Mr Orr in which he reported that he had “the pleasure of talking with Mr Sullivan for some time at your house, [the house of Mr Orr] in the company of his wife”.[8] Dr Horsley stated “I am of the opinion that Mr Sullivan has PTSD”.[9]

[8] Exhibit A2, 1.

[9] Exhibit A2, 4.

16.     Dr Horsley’s evidence, however, carries little weight for the following reasons. 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 conceded that he has no clinical practice and does not treat any patients. It appears that Dr Horsley purported to diagnose Mr Sullivan’s psychiatric condition on the basis of his previous experience as a Departmental medical officer, applying the diagnostic criteria from the DSM 4th Edition. The DSM is not to be applied in a cookbook fashion and requires the exercise of clinical judgement. Dr Horsley’s clinical judgement is informed by his experience as a Departmental medical officer prior to 1992.  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. Dr Horsley examined Mr Sullivan at the residence of Mr John Orr, Mr Sullivan’s representative in these proceedings. No briefing letter was tendered. Dr Horsley did not give any undertaking in his letter to Mr Orr concerning the impartiality of his opinions. The arrangements between Mr Orr and Dr Horsley, both being former employees of the Department of Veterans’ Affairs, for the examination of Mr Sullivan, are not entirely transparent. No conflict of interest has been declared. Dr Horsley’s evidence is that he saw nothing wrong with examining Mr Sullivan in the circumstances described and approached the consultation in a professional manner. That may be so. These circumstances, nevertheless, raise questions about the impartiality of Dr Horsley’s report. I accept that Dr Horsley has policy expertise in matters relating to Vietnam veterans. In relation to the issue of psychiatric diagnosis, however, I prefer the evidence of psychiatrists with clinical experience diagnosing and treating veterans, especially in relation to Post Traumatic Stress Disorder.

17.     On 8 April 2003 Mr Apathy, Mr Sullivan’s (then) treating psychologist, reported that Mr Sullivan “is a complex man with a ‘chip’ on his shoulder but he lacks confidence, he has been suicidal, shows very low tolerance and struggles with his domestic relationship”.[10] Mr Apathy administered the Clinician Administered PTSD Scale and reported that Mr Sullivan met the diagnostic criteria for PTSD.[11] Mr Apathy diagnosed PTSD and Generalised Anxiety.

[10] T14 folio 102.

[11] T14 folio 101.

18.     Unfortunately Mr Apathy died some time ago and his report stands without amplification. One must do the best with that material. It is not clear what materials Mr Apathy relied on when forming his diagnostic opinion. It can be accepted nevertheless that Mr Apathy treated Mr Sullivan for approximately 12 months prior to preparing this report. During this period it appears that Mr Apathy was treating depression but formed the opinion that Mr Sullivan was suffering from Chronic Post Traumatic Stress Disorder and Generalised Anxiety. It appears that Mr Apathy’s conclusions concerning Post Traumatic Stress Disorder were based, at least in part, on Mr Sullivan’s accounts of allegedly traumatic experiences during the period of his service.[12] As will appear, those accounts are not consistent with other accounts given by Mr Sullivan and are not supported by corroborative evidence. Additionally, Mr Sullivan gave oral evidence contrary to aspects of Mr Apathy’s report: he did not witness a close mate being killed, although it can be accepted that he witnessed the aftermath of a motor vehicle accident in which one of his friends was seriously injured (and later died). Mr Sullivan gave evidence that he had a gun pointed at him by a superior officer who was on a charge, but he knew the officer only intended to make a threat and he did not think the officer would actually do anything. This allegedly frightening experience was not mentioned to any other doctor and it was not referred to by Mr Sullivan in his evidence in chief. I note that Mr Apathy does not refer to a motor cycle accident in which Mr Sullivan was seriously injured in 1973. The significance of this event appears in the reports of Dr Lewin and Dr Burgess.[13] For these reasons Mr Apathy’s diagnosis of PTSD is not persuasive.

[12] See T14 folios 101 and 102.

[13] T25 folio 269 and T27 folio 272.

19.     Dr Saboisky examined Mr Sullivan on 10 April 2003 at the request of the Veterans’ Review Board. It appears that the Doctor was provided with documents by the VRB. There is, however, no reliable information concerning the precise extent and nature of those documents. For that reason one cannot be certain that all of those documents have been filed for the purpose of these proceedings. With regard to Mr Sullivan’s mental state examination Dr Saboisky reported that “there was certainly nothing to suggest any pervasive depression or anxiety”.[14] Due to diagnostic uncertainty, the Doctor gave Mr Sullivan a Personality Assessment Inventory questionnaire to complete by himself “at a local coffee shop”, the results of which were subsequently reported. Dr Saboisky reported that in terms of diagnosis it is important to obtain corroborative evidence of the events Mr Sullivan allegedly found traumatic in Vietnam and, with that proviso, proffered a diagnosis of Post Traumatic Stress Disorder.[15]

[14] T15 folio 106.

[15] T15 folio 108.

20.     Mr Sullivan gave evidence that he did not complete the PAI questionnaire properly as he was distrustful of the process and of psychiatrists generally. It is plain enough from Dr Saboisky’s report that the PAI results were confusing, giving rise to several possible psychiatric diagnoses. It appears, nevertheless, that Dr Saboisky had regard to the PAI results and other materials when forming his diagnosis. The additional materials to which Dr Saboisky referred include a written list of symptoms provided to him by Mr Sullivan, which it appears were provided to Mr Sullivan by a veterans’ advocate, Mr Apathy’s report and evidence from Mr Sullivan’s wife, concerning nightmares and distressing recurrent recollections of threatening events that are alleged to have occurred during his service in Vietnam. The truthfulness of Mr Sullivan’s list of symptoms and the accuracy of the evidence provided by Mr Apathy and Mrs Sullivan are in doubt. Dr Saboisky reported that Mr Sullivan complained of specific flashbacks and traumatic incidents relating to “the Vung Tau orphanage, the Back Beach Hospital, motor vehicle accident, Americans shooting at us and guard duty without ammunition or two way radio”.[16] Dr Saboisky does not refer to the motor cycle accident in which Mr Sullivan was injured in 1973.

[16] T15 folios 104-105.

21.     I accept Dr Saboisky’s opinion that corroborative evidence is required to crystallise a diagnosis of PTSD. Mr Sullivan has not been consistent in his reporting of experiences that, he says, occurred and were traumatic during the period of his service in Vietnam. On 8 April 2003 Mr Apathy reported that Mr Sullivan “has witnessed the death of close mates and found himself in a mob of locals who were hell bent on harming him”, “[h]e certainly feared for his life and felt entirely helpless to do anything”, and “he had a loaded gun held to his head by an airman who threatened to kill him”.[17] On 30 April 2003 Dr Saboisky recounted the following allegedly traumatic experiences: “visiting an orphanage which housed young children who had suffered the ravages of contracting neonatal syphilis”; “having to do guard duty without ammunition”; “having been shot at by Americans on three occasions”; and “one particularly frightening experience when two African-American soldiers demanded their beer and shot at them”.[18] On 19 August 2002, however, Dr Cullen, a consultant psychiatrist, reported that Mr Sullivan “did voluntary work at an orphanage for Vietnamese children. He told me that he ‘didn’t want to leave’ that he felt he was ‘making a contribution’”.[19] This account is broadly consistent with the account reported on 28 November 1995 by Dr Douglas, a consultant psychiatrist:[20]

“He said that he worked at Vung Tau, and he had a ball. He said he did not want to come home. However he saw some sad scenes, children who had been burnt and who were very sick. He became involved in helping out at the local orphanage, where he worked one day each week. He said he was also a volunteer at an Army hospital, which he enjoyed. However he saw a number of sad things there. He did the usual picquet and standing patrol duties.”

[17] T14 folio 102.

[18] T15 folio 105.

[19] T11 folio 77.

[20] T4 folio 28.

22.     I note that there is evidence in the form of unsworn statements by returned servicemen who allegedly served with Mr Sullivan in Vietnam, none of whom were called to give evidence. This untested evidence carries little weight. There is evidence from Mrs Sullivan, but she did not know her husband during the period of his operational service and on her evidence he refused to speak to her about his experiences in Vietnam. She did not purport to give evidence about events that occurred during Mr Sullivan’s service in Vietnam. Research was conducted by Writeway Research Services Pty Ltd into the events alleged by Mr Sullivan. On the Writeway reports the only event that is corroborated in official records concerns the occurrence of a motor vehicle accident in which a friend of Mr Sullivan was seriously injured, and later died. Thus, applying Dr Saboisky’s caveat in relation to diagnosis, it appears that the allegedly traumatic events on which a diagnosis of PTSD was raised are, with one exception, not supported by independent corroboration. Considering these factors I am not persuaded, on Mr Sullivan’s own evidence, that his experience coming across the aftermath of the motor vehicle accident in which his friend was injured evoked in him responses of “intense fear, helplessness or horror”. For that reason I am reasonably satisfied that the first diagnostic criterion for PTSD is not met,[21] and a diagnosis of PTSD is not made out in the terms described by Dr Saboisky.

[21] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, 2003, 463.

23.     It appears that Mr Sullivan has a history of occasional anxiety, depression and mild hypomania. Mr Sullivan’s medical records indicate the presence of “Mild depression/anxiety” in December 1972.[22] Further reference is made to symptoms of anxiety 11 years later, on 21 and 30 November 1983.[23] On 28 November 1995, after the passage of a further 13 years, Dr Douglas reported that Mr Sullivan may have suffered from a panic attack in or about 1993.[24] Dr Douglas reported that Mr Sullivan’s presentation was “rather odd” and “rather grandiose”, and diagnosed Hypomania most likely caused by Bipolar Disorder.[25] On 19 August 2002 Dr Cullen reported that Mr Sullivan “has experienced more acute symptoms of anxiety” for a number of years, with episodes occurring “several times a week when he will ‘panic at the simplest thing’”.[26] Dr Cullen diagnosed Anxiety Disorder.

[22] T3 folios 18 and 26.

[23] T3 folio 14 and T19 folio 197.

[24] See T4 folio 27

[25] T4 folio 30.

[26] T11 folio 76.

24.     On 19 July 2005 Dr Lewin, a consultant psychiatrist, reported that “Mr Sullivan presented with a history of anxiety symptoms”, including bodily symptoms or arousal, phobic avoidance symptoms related to crowded places, and intermittent depressive symptoms, that “began when he was involved in a serious motor vehicle accident”.[27] Dr Lewin diagnosed an Anxiety Disorder.

[27] T25 folio 269; see also T31 folio 295.

25.     On 8 February 2006 Dr Burgess, a general practitioner, reported that Mr Sullivan “suffers from chronic anxiety and depression related to a service related accident”.[28] On the same day Dr Jude, a neurologist, reported that Mr Sullivan “has had a long term problem with anxiety and depression”.[29]

[28] T26 folio 272; see also T32 folio 307.

[29] T28 folio 273.

26.     On 16 June 2008 Dr Morris, a consultant psychiatrist, examined and reported on Mr Sullivan.[30] Dr Morris reported that Mr Sullivan did not volunteer any psychological symptoms but recounted a history in which “at times he did feel like he is on a ‘high’ with extra abilities, more increased energy than usual and elated feelings quite often. At these times he is more active and achieves a lot. At other times he feels depressed and suicidal but has made no attempts”.[31] Dr Morris gave evidence that forming a definitive diagnosis in Mr Sullivan’s case is difficult because of the complex nature of his presentation, but he concluded that Mr Sullivan has experienced numerous periods of hypomanic symptoms and numerous periods of depressive symptoms that indicate a likely diagnosis of Cyclothymic Disorder. The Doctor excluded other diagnoses including Major Depressive Episode, Schizoaffective Disorder and Post Traumatic Stress Disorder and acknowledged that the task of diagnosis may have been assisted by the provision of additional evidence from members of Mr Sullivan’s family.

[30] Exhibit R4.

[31] Exhibit R4, 4.

27.     The evidence of Mrs Sullivan is that “[b]ecause of all the pain Bill experiences, he has become very withdrawn, distant, depressed, and in particular very violent, which has been, and still is very scary, and experiences anxiety attacks, when he has to leave his own safe, home environment”.[32] The pain to which Mrs Sullivan refers is pain arising from physical injuries; in particular pain that related to a hiatus hernia that was not properly diagnosed for many years following the motor cycle accident in 1973. Mrs Sullivan confirmed in her oral evidence that she met Mr Sullivan in or about September 1971 and they were married in April 1973. Later in that year Mr Sullivan was involved in the motor cycle accident. By Mrs Sullivan’s account, he was always restless but a number of years later, “when we had children”, “when the children were still young”, she noticed he was experiencing mood swings and sleeping difficulties, including night sweats and nightmares.[33] By her account these symptoms continued and intensified over the years and he experienced “a complete breakdown in August 2006”.[34]

[32] T33 folio 314; see also T8 folios 60-61 and T18 folios 165-168.

[33] Oral evidence.

[34] T33 folio 314.

28.     Considering this evidence I am reasonably satisfied and find that Mr Sullivan suffers from Cyclothymic Disorder and Generalised Anxiety Disorder. Mr Sullivan’s assertion that he suffers from Post Traumatic Stress Disorder is not made out to the reasonable satisfaction standard of proof. Insofar as Mr Sullivan’s claim concerns ‘depressive disorder’,[35]  I am reasonably satisfied that he does not suffer from Major Depressive Disorder or Major Depressive Episode.

is a hypothesis of connecting the disease and the relevant service raised on the material that is before the Tribunal?

[35] See T21 folio 247 and T22 folio 256.

29.     In order to properly address this question it is necessary to have regard to all of the material.[36]  It is not necessary to reject or evaluate the weight or acceptability of the evidence or to resolve conflicts at this stage.[37] Nevertheless, a reasonable hypothesis involves more than mere possibility.[38] 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.[39]

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

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

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

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

30.     The material before me does not raise a hypothesis connecting Cyclothymic Disorder and the circumstances of Mr Sullivan’s operational service in Vietnam. The present material suggests that Cyclothymic Disorder arose in 1994 or 1995 in a manner that is not related to any circumstances of Mr Sullivan’s service in Vietnam.

31.     The material does, however, raise a hypothesis connecting Mr Sullivan’s Generalised Anxiety Disorder and the circumstances of his operational service. The hypothesis is that Mr Sullivan’s Generalised Anxiety Disorder was caused by events that allegedly occurred during the period of his operational service. There is material supporting the occurrence of events during the period of operational service.[40] Proof of facts is not required at this stage and it is not necessary to address conflicts in the relevant materials. Dr Cullen, Mr Apathy and Dr Saboisky related Mr Sullivan’s anxiety disorder to the circumstances of his service. There is material that points to Mr Sullivan experiencing symptoms of anxiety and depression in December 1972, and sporadically thereafter. This material is sufficient to raise a hypothesis connecting Mr Sullivan’s Generalised Anxiety Disorder and the circumstances of his relevant service.

[40] Applicant’s evidence, evidence of Mr Pleass at T13 folios 92-94; evidence of Mr Beaumont at T19 folios 200-201; evidence of Mr Gunner at T18 folio 158; evidence of Mr Zammit-Ross at T18 folios 159-161; Writeway Research Services Report at T16 folios 121-128.

32.     I have found that Mr Sullivan does not suffer from Post Traumatic Stress Disorder or Major depressive Disorder. It is not necessary therefore to consider Mr Sullivan’s assertion that the material raises a hypothesis connecting those conditions and the circumstances of his service in Vietnam.[41]

[41] Mines v Repatriation Commission (2004) 86 ALD 62 at 74; Masliczek v Repatriation Commission [2008] FCA 1535 at [18].

is an applicable SoP in force?

33.     The applicable SoP in relation to Generalised Anxiety Disorder is SoP Number 101 of 2007 concerning Anxiety Disorder. Mr Sullivan did not press any accrued rights in relation to the SoP that was in force when his claim was initially determined. I have had regard to that SoP, being SoP Number 1 of 2000 concerning Generalised Anxiety Disorder.

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

34.     Unfortunately for Mr Sullivan, the raised hypothesis is not consistent with the terms of the presently applicable SoP or the SoP that was in force when his claim was originally determined.

35.     The SoPs set out the meaning of Generalised Anxiety Disorder in terms of specific features, being diagnostic criteria derived from the DSM, and lists the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the anxiety disorder with the circumstances of the veteran’s operational service. I have considered each of these factors. Of present relevance are factors 6(a)(ii) and (iii) in the present SoP and factor 5(a)(ii) of the previous SoP; other factors do not apply. Factors 6(a)(ii) and (iii) of the present SoP concern experiencing a category 1A or 1B stressor within the five years immediately before the clinical onset of the anxiety disorder. Factor 5(a)(ii) of the previous SoP concerns experiencing a severe psychosocial stressor within two years immediately before the clinical onset of the anxiety disorder.

36.     It is necessary to consider the material pointing to the clinical onset of Mr Sullivan’s anxiety disorder.[42]  The term ‘clinical onset’ requires the manifestation of all symptoms,[43] 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.

[42] Lees v Repatriation Commission [2002] FCAFC 398 at [13], [16]; Repatriation Commission v Norton [2008] FCA 1132 at [16] to [18].

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

37.     The present material does not point to Mr Sullivan suffering symptoms that are sufficient to suggest the clinical onset of Generalised Anxiety Disorder or any other psychiatric disorder within five years[44] or two years[45] of the stressful events he allegedly experienced during his tour of duty in Vietnam.

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

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

38.     Much of this case was directed to the alleged occurrence and character of these experiences and whether they are stressors within the meaning of a category 1A or 1B stressor for the purposes of the SoP concerning Post Traumatic Stress Disorder. Even if the alleged events on service are within the defined meaning of those terms for the purposes of the SoPs concerning Generalised Anxiety Disorder, it does not assist Mr Sullivan’s case for the simple reason that there is not sufficient material pointing to the clinical onset of his anxiety disorder within the ensuing period of five years. There is material that indicates Mr Sullivan experienced some mild symptoms of anxiety and depression in December 1972. The evidence of Mrs Sullivan is Mr Sullivan had troubled or interrupted sleep from early in their marriage; she thought she first noticed this before the children were born, but the sleeping difficulties became worse after the children were born. Mr Sullivan’s oldest child was born in 1975. There is evidence that Mr Sullivan experienced symptoms of anxiety in November 1983.[46]

[46] T3 folio 14 and T19 folio 197.

39.     Material suggesting that Mr Sullivan complained of mild anxiety and depression on one occasion in December 1972, and was restless and experienced difficulty sleeping a number of years later is not sufficient to establish the clinical onset of Generalised Anxiety Disorder. The features required are set out at cl 3(b) of the present SoP and cl 8 of the previous SoP. As can be seen, the features are set out in six conjunctive categories, all of which must be present before it can be said that clinical onset has occurred. The present evidence does not point to Mr Sullivan experiencing sufficient of those features within the period of five years following his service in Vietnam to suggest that clinical onset of Generalised Anxiety Disorder occurred at that time.

40.     That being so, the raised hypothesis connecting Mr Sullivan’s generalised Anxiety Disorder with the circumstances of his operational service in Vietnam is not consistent with the requirements of the applicable SoP that is presently in force, or the previous SoP in force when his claim was first determined.

41.     It follows that the hypothesis of connection is not a reasonable hypothesis for the purposes of sections 120A(3) and 120(3) of the Act. I am compelled, therefore, to find that there is no sufficient ground to determine that Mr Sullivan’s Generalised Anxiety Disorder is war-caused.

conclusion

42.     Mr Sullivan’s claim concerning Anxiety Disorder and Depressive Disorder asserted that these conditions were the result of a motor cycle accident in 1973, during the period of his defence service. His later assertion that he suffers from war-caused Post Traumatic Stress Disorder is not made out. I have found that Mr Sullivan does not suffer from Post Traumatic Stress Disorder, but suffers from Cyclothymic Disorder and Generalised Anxiety Disorder, neither of which is war-caused. Consistent with Mr Orr’s concession, I have not determined whether either of these conditions is caused by Mr Sullivan’s Defence service.

43.     It follows that the decision under review is affirmed.

I certify that the 43 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  20-21 November 2008

Date of Decision  19 December 2008

Representative for the Applicant:       Mr J Orr

Capital Lawyers

Representative for the Respondent: Mr B. Tallboys

Chamberlains Law Firm