Tanzer and Repatriation Commission
[2008] AATA 133
•20 February 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 133
ADMINISTRATIVE APPEALS TRIBUNAL
No Q2006/366
VETERANS' APPEALS DIVISION Re BARRY TANZER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal
Mr RG Kenny, Member
Date 20 February 2008
Place Brisbane
Decision
The Tribunal affirms the decision under review
.
...................[Sgd]........................
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – disability pension – operational service with Royal Australian Air Force in Ubon Thailand –appropriate diagnosis of psychiatric conditions –– recurrent major depressive disorder and alcohol abuse diagnosed – application of Statements of Principles – effects of altercation with Thai police - disciplinary proceedings in Ubon - experiencing a category 1A or 1B stressor – no clinical onset of depressive disorder within five years – no clinical onset of alcohol abuse within two years - reasonable hypothesis of relevant relationship to service not raised – conditions not war-caused – decision affirmed
Veterans’ Entitlements Act 1986 ss 6C, 7, 9, 14 120, 120A
Fogarty v Repatriation Commission (2003) 37 AAR 363; [2003] FCAFC 136
Repatriation Commission v Smith (1987) 15 FLR 327; (1987) 74 ALR 537; (1987) 12 ALD 798; (1987) 7 AAR 17
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Keeley v Repatriation Commission (2000) 60 ALD 401; 98 FCR 108
Bushell v Repatriation Commission (1992) 175 CLR 408; 29 ALD 1
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission and Cornelius [2002] FCA 750
Lees v Repatriation Commission (2002) 125 FCR 331; [2002] FCAFC 398; (2002) 74 ALD 68; (2002) 36 AAR 484
Youngnickel v Repatriation Commission [2004] FCA 1691
Woodward v Repatriation Commission (2003) 75 ALD 420; 131 FCR 473
Repatriation Commission v Stoddart (2003) 38 AAR 176 ; [2003] 134 FCR 392; 77 ALD 67
Hardman v Repatriation Commission [2004] FCA 1174; (2004) 82 ALD 423; (2004) 40 AAR 486REASONS FOR DECISION
February 2008
Mr RG Kenny, Member
Background
1. Barry Tanzer (the applicant) served in the Royal Australian Air Force (RAAF) between 1961 and 1967. On 31 May 2004, he lodged with the Repatriation Commission (the respondent), in accordance with s14 of the Veterans’ Entitlements Act 1986 (the Act), a claim for a disability pension for “depressive disorder” and “alcohol abuse” which he contended were related to his RAAF service. On 24 August 2004, the respondent determined that any such conditions were not related to his service. On 28 February 2006, the Veterans’ Review Board affirmed the decision and Mr Tanzer now seeks further review by the Administrative Appeals Tribunal (the Tribunal).
Service and Standard of Proof
2. Mr Tanzer’s RAAF service included a period from 15 July 1965 until 14 January 1966 in Ubon, Thailand. This constitutes eligible war service in the form of operational service, as provided for in s7 and s6C, respectively, of the Act.
3. The standard of proof for determining diagnostic matters under the Act is provided for in subsection 120(4) thereof and this requires that such matters be determined to the Tribunal’s reasonable satisfaction: see Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373. That imports the civil standard of proof so that matters must be determined on the balance of probabilities: see Repatriation Commission v Smith (1987) 15 FCR 327 at 335. The standard of proof applicable to issues of causation for operational service is set out in s120(1) of the Act which reads:
“Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
4. The application of that provision is affected by the terms of s120(3) and also by s120A of the Act which requires the application of any relevant Statements of Principles that have been published by the Repatriation Medical Authority (RMA). Under s9(1)(b) of the Act, a condition will be war-caused if it arose out of, or was attributable to, any eligible war service rendered.
Contentions
5. Mr Honchin submitted that the two conditions claimed by Mr Tanzer were related to either one of two separate incidents which occurred when Mr Tanzer was in Ubon. The first of these was his witnessing, in the distance, the crashing of an aircraft. It was at night. He heard the impact and saw a fire ball which resulted from the crash and heard sirens of the attending rescue vehicles. He learnt subsequently that it was an F4 Phantom aircraft of the US Air Force and that the crew had been killed. The second incident occurred in the early hours of New Year’s day, when Mr Tanzer was assaulted by Thai police after he had left a bar in the Ubon township and was preparing to travel back to his base. Mr Honchin submitted that Mr Tanzer lost consciousness after he was struck on the side of the head, that he was in fear of his life at the time and that, as a result, he subsequently developed depressive symptoms and became a heavy consumer of alcohol.
6. Mr Stoner conceded that Mr Tanzer had experienced the requisite triggering event for depressive disorder when he was assaulted but submitted that the clinical onset of that condition had occurred outside of the relevant time-frame which would enable it to be determined to be war-caused. He submitted that Mr Tanzer had not experienced a stressful event which was sufficient in extent to be causally associated with the development of alcohol abuse. He also accepted that Mr Tanzer’s conduct was not a sufficiently serious breach of discipline as to defeat his claim in accordance with the terms of s 9(3) of the Act.
The Applicant
7. Mr Tanzer gave the following evidence. While in Ubon, he experienced, at times, a heightened state of alertness and he referred to incidents such as the crash landing of the Phantom and occasional airfield alerts as contributing to that feeling. His main concern was the event which occurred during New Year’s Eve after he left a bar in Ubon township at about 3 am. He had been in the company of fellow servicemen but, as was his practice, he had ceased consuming a small amount of alcohol by midnight. He felt tired and, although his friends stayed on, he decided to return to the base. He intended to take his usual means of conveyance between the base and the town. This was by a 3 wheeled cycle, which Mr Tanzer called a samalay, driven by a local person. On exiting the bar, he was accosted by several samalay drivers who were seeking his custom. He swore dismissively at them as he had a regular driver for whom he was prepared to wait. A voice from behind him instructed him to keep a civil tongue. He turned and repeated his dismissive comment and then noted that the man was dressed in an American uniform. At the same time, he was struck on the side of the head by an unseen assailant. He was rendered unconscious and his next memory was that of being in a vehicle with Australian service police. They were still outside the bar. He noted that the man he had addressed was a US service officer, that he was talking to Australian service police and that several baton-carrying Thai police were also present. He was bleeding profusely from his right ear and eventually was driven by the Australian service police to his base. He attended the hospital where a doctor cleaned his wound and discharged him without dressing for the wound or medication.
8. Subsequently, he was charged with having engaged in conduct to the prejudice of good order and RAAF discipline. After summary conviction, he was confined to barracks for 8 days. He perceived this as a great injustice because he believed he had not been at fault. He felt angry and depressed over the way in which the matter was dealt with and felt that he had been given no support by the RAAF. At the time of the incident, he was unaware of the identity of the man who had spoken to him or of those who had surrounded him. Also, in the heightened state of alertness that he felt whilst in Ubon, he thought that they may have been infiltrating Viet Cong as the township was only some 40 km from the Vietnam border.
9. Mr Tanzer returned to Australia shortly after the incident. He felt “down” because of it and consumed alcohol heavily. In his evidence, Mr Tanzer described himself as a social drinker before he went to Thailand; as having, “in the early piece” in Thailand, a few beers on the “weekend, maybe Saturday night” and on the base where there was a canteen; as wiping himself out when he reached the end of his period in Ubon; and as continuing in that manner on return to Australia during his RAAF service and into civilian life. He said that his alcohol consumption increased from being a social drinker to the “wipe-out” stage over a period of about 6 months. He agreed that, prior to the assault incident in Ubon, he had already reached the stage where he would “wipe himself out” with alcohol.
10. Mr Tanzer experienced difficulty in taking orders from his RAAF superiors and had interpersonal differences with some of them. In particular, whilst he was serving in the Northern Territory, this was with an officer, Flight Lieutenant Taylor, because he would not permit Mr Tanzer to visit his wife who was in Katherine Hospital at the time. He had trouble sleeping and had feelings of depression and headaches on most days. He did not report his symptoms or feelings to RAAF authorities because such things were not treated with any sympathy in those days. Mr Tanzer accepted that service reports recorded a sound performance by him in the RAAF. However, he knew the author of the reports and said that these were not accurate. Contrary to comments in the reports, he had not been promoted and, indeed, had been advised by Flight Lieutenant Taylor, with whom he had a dispute, that he would never be promoted.
11. Within 12 months of leaving the RAAF, Mr Tanzer was employed by the Queensland Department of Primary Industries. He started with the Wacol Research Centre in Brisbane and “gradually progressed up through the ranks to become a stock inspector”. This involved him in frequent travel around the state. In his evidence to the Veterans’ Review Board, he described himself as having risen to the level of Regional Manager. He first saw a doctor for his problems in Mackay in the late 1970s because, at that stage, he felt that his symptoms were worsening. Prior to this, his position as a stock inspector meant that he was not living in a stable environment for seeking medical assistance and was reluctant to speak about his feelings to doctors whom he saw from time to time in country hospitals. From 1997, he began to receive treatment from Dr Keating in Rockhampton.
12. Mr Tanzer was married in 1966 but tended not to discuss his feelings of depression with his wife until recent times after he had attended counselling sessions. Following the assault incident, he recalled experiencing the following feelings: sadness, inability to concentrate, insomnia and difficulty staying asleep, and feeling depressed on most days. He experienced all of these whilst still serving with the RAAF and in the years after discharge. Within 12 months of leaving the RAAF, his weight increased from 12 stone to 18 stone.
Carol Tanzer
13. Mrs Tanzer said that she met her husband prior to his service in Thailand. He was a changed man upon his return to Australia and became depressed when he made reference to the incident concerning the Thai police. She described his depression as being very severe in the 1990s such that he was admitted to the Rockhampton Base Hospital in 1993 for a course in cognitive behavioural therapy. She recalled speaking to Dr Mulholland and agreed that she had told him that Mr Tanzer displayed severe headaches, withdrawal, negative thoughts and excessive reaction to pressure in the mid-1970s. She also agreed that she had advised him that Mr Tanzer had first become obviously depressed and anxious in 1976/7 whilst they where living in Mackay but that there had been a “build up” of psychiatric problems over the years. She described him as being very angry around the time when he left the RAAF. She noted that, in the early 1970s, he had headaches and would withdraw for a few hours at a time but was unable to identify anything else about his personality at that time. Mrs Tanzer said that, after returning from Thailand, Mr Tanzer was consuming more alcohol than he had previously and that it continued to increase subsequent years until, by the 1970s, he was drinking more scotch, other spirits and wines rather than beer.
MedicalEvidence
Dr Likely
14. Evidence was given in this matter by psychiatrists Dr Michael Likely and Dr Peter Mulholland. Both diagnosed alcohol abuse. Dr Likely has treated Mr Tanzer since February 2004. In reports dated 25 February 2004, 7 June 2004 and 4 October 2006, Dr Likely diagnosed major depressive disorder. In his most recent report, dated 29 March 2007, and in his evidence, he diagnosed recurrent major depressive disorder. His explanation for this amendment was that he was unable to confirm from Mr Tanzer’s history that he constantly fulfilled all of the criteria for major depressive episode.
15. Dr Likely considered, from the history provided by Mr Tanzer, that he had satisfied the criteria for a major depressive episode in approximately 1965 or 1966 around the time of his return from Thailand to Australia. He described Mr Tanzer as reporting subjective experiences of depressed mood most of the day on more days than not, neurovegetative disturbance in the form of poor sleep, poor appetite, anergier, amotivation, anhedonia, feelings of hopelessness and suicidal ideation. He also expressed the opinion that Mr Tanzer had habitually self-medicated for his depressive symptoms by taking large amounts of alcohol. Dr Likely noted Mrs Tanzer’s evidence that she had not become aware of Mr Tanzer’s psychiatric condition until the mid-1970s. Again, he referred to the gradual development of the condition in many cases but conceded that he would expect a spouse to notice psychiatric changes after a period of a few months rather than a few years.
16. Dr Likely implicated the incident with the Thai police as being causally related with both alcohol abuse and recurrent major depressive disorder. He described significant distress and feelings of fear and helplessness at that time as well as feelings of anger and of marginalization as a result of the subsequent actions taken by the RAAF. Dr Likely’s opinion was that the incident met the definitions of a psychosocial stressor, category AI stressor and category 1B stressor as set out in the relevant Statements of Principles. He noted the favourable reports prepared during Mr Tanzer’s service and absence of formal complaint by him about his symptoms during that time. Dr Likely considered this to be unsurprising because, in his experience, servicemen frequently masked psychiatric symptoms and preferred not to reveal them to the authorities as it may harm career prospects. He noted that Mr Tanzer had waited until the late 1970s before he saw a doctor about his condition and described a slow onset of depression in the majority of cases which often leads to delay in obtaining treatment.
Dr Mulholland
17. In addition to alcohol abuse, Dr Mulholland diagnosed major depressive disorder. From the history that he took from Mr Tanzer and his wife he considered that the onset of depression was in approximately 1976 or 1977 and that alcohol consumption increased after his return from Thailand. He agreed that a person usually experienced a gradual build-up of symptoms of depression and that, in Mr Tanzer’s case, things came to a head in the mid-1970s when he saw a doctor and was prescribed antidepressants. Nevertheless, he was not able to definitely exclude the onset of the condition by 1967.
18. Dr Mulholland considered it unlikely that the excessive alcohol consumption was directly related to the incident in Ubon and was more likely due to other non-specific factors. He considered that the development of depression was secondary to long term excessive intake of alcohol or perhaps to factors unrelated to the incident in Ubon.
Other Evidence
19. In evidence was a record of the disciplinary proceedings taken against Mr Tanzer after the incident in Ubon. It records a conviction for conduct to the prejudice of good order and RAAF discipline in that he used foul language in speaking to a 1st Lieutenant of the USAF Air Police Squadron and had adopted a belligerent attitude towards him. The proceeding took place on 5 January 1966 and the punishment awarded is shown as 8 days confined to barracks.
20. Also in evidence were a series of confidential RAAF reports prepared after Mr Tanzer returned from Ubon. These relate to his performance in carrying out his RAAF duties. They contain favourable comments including a reference to his performing well in various tasks in which he was employed and was a good asset to the service such that his promotion was recommended. This material is referred to in more detail below (paragraph 45).
21. Mr Tanzer completed an alcohol consumption questionnaire in July 2004. It records that he commenced drinking beer in 1963 due to “peer pressure” and to be “part of the team”; that he increased his consumption in 1965 in Ubon where he would “binge drink” on beer and spirits because it was stressful at times and because alcohol was cheap; that he was consuming approximately 6 beers per day in 1967; and increased again in 1995 when he would drink beer, wine and spirits until he would fall asleep. The summary of evidence given by Mr Tanzer to the Veterans’ Review Board included a reference by him to increasing his alcohol consumption after returning to Australia and being posted to RAAF Tindel in the Northern Territory. He said that he began to drink more heavily as a form of “self medication” when he started to get clinical signs of depression which was when he saw Dr Keating in Rockhampton in the 1990s.
Diagnosis
22. It is not in dispute, and I am satisfied, that part of Mr Tanzer’s claim is answered by a diagnosis of alcohol abuse. For the other condition, Mr Stoner submitted that the appropriate diagnosis is “major depressive disorder”; Mr Honchin submitted that it is “recurrent major depressive disorder”. The diagnostic issue is relevant because of the content of the two Statements of Principles for depressive disorder which need to be considered. These are Instruments No’d 58 of 1998 and 17 of 2007.
23. Dr Mulholland diagnosed major depressive disorder. So did Dr Likely; although he qualified this by describing it as “recurrent”. It is not apparent from the evidence of Dr Mulholland that he considered this aspect of the diagnosis. Dr Likely clearly did. He has treated Mr Tanzer for several years. Dr Mulholland saw him on one occasion. Dr Likely’s insight into the condition as it has impacted upon Mr Tanzer places him in the better position for diagnostic purposes. I am satisfied that he was mindful of the definitional requirements for recurrent major depressive disorder, as they are set out in Instrument No 17 of 2007, in finalizing his diagnosis and I am satisfied it should be adopted.
24. Instrument No 58 of 1998 describes major depressive disorder in both recurrent and single episode form. It does not set out the meaning of those terms but includes, by reference, the meaning provided in DSM IV. I am satisfied that this is not materially different from the definition of major depressive episode as set out in Instrument No 17 of 2007.
25. Accordingly, the issue for consideration is whether, in accordance with s 9 of the Act, recurrent major depressive disorder and/or alcohol abuse arose out of or can be attributed to Mr Tanzer’s service in Ubon.
Principles of Causation
26. As noted above, disciplinary proceedings were taken against Mr Tanzer because of the circumstances surrounding the assault incident. I have noted Mr Stoner’s concession that Mr Tanzer’s conduct does not amount to a sufficiently serious breach of discipline such that it would deny his claim in accordance with s 9(3) of the Act. Because of the approach that I have adopted and set out below, it is unnecessary for me to make any findings in relation to that provision.
27. The Federal Court, in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92, set out a four-step procedure for determining issues of causation in relation to operational service. The first of these requires that there be an hypothesis of connection between a claimed condition and service. From the contentions of Mr Honchin and the evidence of Mr Tanzer, I accept that two separate hypotheses may be identified. These are that, whilst in Ubon, he witnessed the distant crashing of an aircraft and was assaulted outside of a bar in the early hours of new year’s day.
28. The second of the four Deledio steps requires identification of any relevant Statement of Principles as published by the RMA. For recurrent major depressive disorder, these are Instruments No’d. 58 of 1998 and 17 of 2007. The 2007 Instrument repealed and replaced the earlier one. The matter is to be determined, initially, under the latter Instrument but, in the event that its requirements are not met, it is then to be considered under the repealed Instrument: Keeley v Repatriation Commission (2000) 60 ALD 401 at 415, 422. For alcohol abuse, the relevant Statement of Principles is Instrument No 76 of 1998.
29. In so far as relevant, the factors of causation and associated definitions in Instruments No’d 17 of 2007 and 58 of 1998 for depressive disorder and Instrument No 76 of 1998 for alcohol abuse read:
Depressive disorder (Instrument No 17 of 2007)
(b) experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or
(c) experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder;
“a category 1A stressor" means 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;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or(e) being an eyewitness to or participating in, the clearance of critically injured casualties.
Depressive disorder (Instrument No. 58 of 1998)
(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder;
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
Alcohol abuse (Instrument No 76 of 1998)
(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol abuse; or(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol abuse;
“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
“psychiatric disorder” means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV;
30. The third Deledio step does not involve the making of findings of fact but requires a consideration of each advanced hypothesis to determine whether it is reasonable in the sense that there is some material which calls for a determination under subsection 120(1) of the Act: see Bushell v Repatriation Commission (1992) 175 CLR 408 at 415. This requirement will be met if the hypothesis fits, in the sense of being consistent with, the template provided by the relevant factor and associated definition in the Statement of Principles. If an hypothesis is reasonable, it will then be necessary to consider the fourth of the Deledio steps.
Reasonableness of Hypotheses
Depressive disorder: experiencing a category 1A or 1B stressor or a severe psychosocial stressor
31. I have noted the concession by Mr Stoner that the material before the Tribunal relating to the assault on Mr Tanzer meets the description of a category 1A stressor or a severe psychosocial stressor as defined above. I accept that concession as having been properly made. However, the material relating to the aircraft incident does not point to either of those definitions or to that of a category 1B stressor. Nonetheless, the assault hypothesis in relation to depressive disorder will be reasonable if the material before the Tribunal points to a clinical onset of the condition within the relevant time-frame. The more generous of those time-frames is provided in the 2007 Instrument. This is 5 years from the experiencing of the stressor. It is not in dispute that this should be applied in Mr Tanzer’s case. The relevant date is 1 January 1971.
32. The term “clinical onset” has not been defined by the RMA but the requirement will be met if symptoms have been described to a medical practitioner who is then able to state that the presence of those symptoms at a particular time indicates that the condition was present at that time: see Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670 and Repatriation Commission and Cornelius [2002] FCA 750. Also, all of the symptoms of the disease need to be shown within the relevant time-frame: see Lees v Repatriation Commission (2002) 125 FCR 331 and Youngnickel v Repatriation Commission [2004] FCA 1691. This means that, for recurrent major depressive disorder, there must be material which points to the criteria listed in the definition of major depressive episode. Dr Likely’s opinion is that the requirements were met in approximately 1965 or 1966. Dr Mulholland’s opinion is that the requirements were met in approximately 1976.
33. The definition of major depressive episode in Instrument No 17 of 2007 reads:
"major depressive episode" means a psychiatric condition that meets all of the following diagnostic criteria (derived from DSM-IV-TR):
(a) Five (or more) of the following symptoms have been present during the same two-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure. Symptoms that are clearly due to a general medical condition, or mood-incongruent delusions or hallucinations, should not be included.
(i) depressed mood most of the day, nearly every day, as indicated by either subjective report (e.g., feels sad or empty) or observation made by others (e.g., appears tearful). In children and adolescents, it can present as irritable mood;
(ii) markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by either subjective account or observation made by others);
(iii) significant weight loss when not dieting or weight gain (e.g., a change of more than five percent of body weight in a month), or decrease or increase in appetite nearly every day. In children, consider failure to make expected weight gains;
(iv) insomnia or hypersomnia nearly every day;
(v) psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down);
(vi) fatigue or loss of energy nearly every day;
(vii) feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick);
(viii) diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others); or
(ix) recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide.
(b) The symptoms do not meet criteria for a mixed episode.
(c) The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
(d) 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).
(e) The symptoms are not better accounted for by bereavement, i.e., after the loss of a loved one, the symptoms persist for longer than two months or are characterized by marked functional impairment, morbid preoccupation with worthlessness, suicidal ideation, psychotic symptoms, or psychomotor retardation.
34. Mr Honchin submitted that there was material before the Tribunal which pointed to five criteria in paragraph (a)(i), (iii), (iv), (vi) and (viii) and paragraphs (b) to (e). He made no contentions in relation to the remaining elements of paragraph (a). Mr Stoner conceded that paragraph (a)(iii) was met because of Mr Tanzer’s significant weight gain but submitted that the other requirements of paragraph (a) and of paragraph (c) were not met.
35. Mr Tanzer described himself as experiencing, after being assaulted and in Australia before leaving the RAAF, as having a depressed mood on most days. He described significant weight gain shortly after leaving the RAAF. He referred to experiencing insomnia and difficulty in staying asleep whilst still in the RAAF. Mrs Tanzer referred to his difficulty in sleeping and feeling fatigued although it is not clear that she was referring to the period prior to 1971. Mr Tanzer referred to an inability to concentrate in the years following the assault. Those references, taken at the highest from Mr Tanzer’s perspective, are consistent with the terms of paragraphs (a)(i), (iii), (iv), (vi) and (viii) of the definition of major depressive episode. There is no dispute concerning paragraphs (b), (d) and (e) of that definition and, again taken at its highest, Mr Tanzer’s evidence points to the requirements of paragraph (c) of the definition.
36. Taken as a whole, the material before the Tribunal is consistent with the template for depressive disorder in Instrument No 17 of 2007 and a reasonable hypothesis of a relationship to service is raised. Accordingly, consideration must be given to the fourth of the Deledio steps. Recurrent major depressive disorder will be war-caused unless, after an analysis of all the evidence, I am satisfied beyond reasonable doubt that such is not the case.
Alcohol abuse: factor 5(a) suffering from a psychiatric disorder
37. It is not disputed that recurrent major depressive disorder is an Axis 1 disorder of mental health attracting a diagnosis under DSM IV. However, as will be seen below, that condition has been found to be unrelated to Mr Tanzer’s service and, therefore, cannot be considered in this context.
Alcohol abuse: factor 5(b): experiencing a severe stressor
38. Both subjective and objective considerations are relevant in applying the definition of experiencing a severe stressor: see Woodward v Repatriation Commission (2003) 75 ALD 420 at 445 and Repatriation Commission v Stoddart (2003) 38 AAR 176 at 183. In Woodward, the Full Federal Court said:
“The definition extended to a person experiencing or being confronted with an event involving a threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it was capable of conveying, and did convey, the risk of death or serious injury. In other words ‘experiencing’ should be construed as having at least this partial subjective connotation.”
39. The components of the definition of experiencing a severe stressor relate to an event that involved a threat of death or serious injury or threat to a person’s physical integrity. The material before me in relation to the assault incident, but not that for the aircraft incident, points to Mr Tanzer experiencing an event which was, judged subjectively from his own perspective and objectively from the point of view of a reasonable person in his position, capable of conveying a risk of at least serious injury to him. The material before me is consistent with the template of experiencing a severe stressor in paragraph (b) the Statement of Principles for alcohol abuse.
40. However, that provision also requires material which points to a clinical onset of the condition within 2 years of experiencing the severe stressor. What is required for the clinical onset of a condition has been set out above. The diagnostic criteria for the condition are set out in the Statement of Principles in the following way:
“alcohol abuse” means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.
The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows
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
(2) recurrent alcohol use in situations in which it is physically hazardous
(3) recurrent alcohol -related legal problems
(4) continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol
B. The symptoms have never met the criteria for alcohol dependence.
41. It should also be noted that a consideration of clinical onset is not confined to the matters favourable to the applicant: see Hardman v Repatriation Commission[2004] FCA 1174. That has relevance in this matter because of the significant inconsistencies in Mr Tanzer’s evidence concerning his alcohol consumption patterns.
42. In his evidence, Mr Tanzer described himself as a social drinker before he went to Thailand, as having a few beers on the weekend and in the Ubon base canteen during the week and as increasing his consumption to a point where, prior to the assault incident, he would “wipe himself out” with alcohol. On one account, he said that he continued in that manner on return to Australia during his RAAF service and into civilian life. In his alcohol consumption questionnaire, he wrote that he increased his consumption in 1965 in Ubon where he would “binge drink” on beer and spirits because it was stressful at times and because alcohol was cheap. He wrote that he was consuming at the approximate rate of only 6 beers per day in 1967. He also wrote that he next increased his consumption in 1995 with beer, wine and spirits until he fell asleep. The summary of Mr Tanzer’s evidence at the Veterans’ Review Board recorded an increase in alcohol consumption after returning to Australia and being posted to the Northern Territory with a further increase in the 1990s. I note that the imposition of 8 days of confinement to barracks on 5 January 1966 would have taken him within a day or so of his departure for Australia on 14 January 1966.
43. One view of that material may point to the presence of alcohol abuse prior to the assault incident in Ubon. Another view of it may point to the development of alcohol abuse in the mid-1990s following a consumption pattern in Australia of about six beers per day. A third view of it may point to the development of alcohol abuse in the 1990s following an increase in consumption in the Northern Territory which was within two years of the assault incident. Only the last of those versions points to a clinical onset within two years of the assault incident; significantly, the other two versions point, respectively, to an earlier and a much later clinical onset. Furthermore, the raised material does not point to any of the four factors listed in paragraph A of the diagnostic criteria: failure to fulfill major role obligations at work or home; physically hazardous use; legal problems; or social or interpersonal problems caused or exacerbated by the effects of alcohol. As to the first of these, his favourable work history is detailed below (paragraph 45). As to the last of those, interpersonal problems were described by Mr Tanzer in relation to the officer at Tindel but his evidence was that this was due to his not being permitted to visit his wife in hospital. No material relates to the other two items in the relevant 2 year period. The material before me is not consistent with the template of the Statement of Principles for alcohol abuse in respect of its requirements for timely clinical onset.
44. This means that there is no reasonable hypothesis of a relevant relationship between alcohol abuse and Mr Tanzer’s service. In that situation, it is not necessary to give consideration to the fourth of the Delidio steps for that condition. Nonetheless, I have given consideration to this step below.
Deledio Step 4: Is There A War-Caused Condition?
Recurrent major depressive disorder
45. The material which points to the reasonableness of the assault hypothesis derives almost entirely from Mr Tanzer’s reporting to Dr Likely and in his evidence. However, there is evidence before the Tribunal which raises more than a reasonable doubt about those observations. In that regard, his RAAF records are significant. In June 1966, an officer (Flying Officer Papadoupolis) completed a Confidential Report about him. Under the heading of Trade Proficiency, on a scale of 1 to 4, he is rated at 3 for “accuracy of work” on the basis that he makes very few errors; at 2 or 3 for “trade knowledge” on the basis that he copes adequately with routine problems and can cope with unusual problems; and at 2 or 3 on “proficiency in current duties” in that his proficiency is satisfactory and he is more proficient than most members of his rank and mustering. Under the heading of “personal qualities”, he is rated for “dependability” at 3 as being more reliable than most; for “service attitude” at 3 on the basis that he is well-suited to service life and accepts extra duties willingly; and for “appearance and bearing” at 3 on the basis that he is neat and smart. The following summary is given:
This airman has performed very well at the various tasks in which he was employed. His proven abilities indicate a good potential. As this airman is a good asset to the service his promotion is recommended.
46. Flying Officer Papadoupolis recorded that Mr Tanzer had served under him for 1½ years.
47. Another report, completed in November 1966 by Wing Commander Dawson, records Mr Tanzer’s general conduct as “very good”; his trade proficiency as being “superior”; his diligence as “average” and his attitude to service as being “well suited”. The report goes on to describe him in the following terms:
Reliable type with a general behaviour pattern that is quite good. Requires very little supervision. Slouches a little but this seems to be a failing of nearly all men of his height 6’4”.
48. In December 1966, a further report, the author of which is not indicated, was completed. This described Mr Tanzer’s conduct as being very good throughout his service and as being suitable for continued service. The report notes that his assessment was low in his early service period but had been at level 8 or more for the last two years. A medical examination record, completed in September 1967 by a RAAF medical officer (Morrissey) described his psychiatric assessment as being normal.
49. I have noted Dr Likely’s opinion that servicemen often demonstrate reluctance to reveal to other service, personal or psychiatric problems they may experience. However, the September 1967 report was prior to his discharge and at a time where any such concern about career would have no relevance. The RAAF records relate to most of the first two years of Mr Tanzer’s service life immediately after returning from Ubon. They are not consistent with the clinical history which Mr Tanzer gave of the presentation of symptoms which he described to Dr Likely and which he associated with depression. Also, I have noted Mr Tanzer’s contention that his RAAF reports were not accurate and that he had known the person who completed them. I do not accept his explanation. The reports are consistent with each other and, as indicated above, they were not completed by the same officer.
50. To similar effect is the post RAAF working life of Mr Tanzer with the Queensland Department of Primary Industries. His evidence was that he began this employment within a short time of leaving the RAAF and gradually worked his way to become a stock inspector. This involved him in frequent travel around the state and promotion to the responsible position of Regional Manager.
51. Mrs Tanzer gave evidence of Mr Tanzer’s sleeping patterns. However, the statement and her evidence give no time-frame of reference to this and did not implicate these problems prior to January 1971. She noted headaches and withdrawal in the early 1970s but was unable to identify anything else about his personality at that time. Her evidence was that she noticed symptoms of a psychiatric condition in Mr Tanzer in the mid-1970s. That was her statement to Dr Mulholland and she confirmed this in her oral evidence. While I accept as correct the observations of Dr Likely that a depressive disorder can gradually develop, I also note his opinion that, if a person was suffering from depressive disorder, the spouse of the person would be more likely to note the symptoms within a few months of their onset rather than in a few years thereof. The evidence of Mrs Tanzer is consistent with the decision by Mr Tanzer, in the late 1970s, to seek medical assistance for his condition. In his evidence, Dr Mulholland conceded that he could not definitely exclude the onset of the condition by 1967. However, that does not point to an onset in that time-frame and, indeed, he maintained his position that this was no more than “possible”.
52. The clinical onset of a condition requires all of the diagnostic criteria to be met. For Mr Tanzer’s recurrent major depressive disorder to be war-caused, the clinical onset must have occurred by January 1971. On the evidence before me, while I accept that some aspects of depressive disorder might have become manifest in him by 1971, I am satisfied beyond reasonable doubt that the diagnostic criteria for the condition were not satisfied until after 1971. On that basis, recurrent major depressive disorder is not war-caused in accordance with s 9 of the Act.
Alcohol abuse
53. In the event that a reasonable hypothesis were to be raised between this condition and Mr Tanzer’s service, I would be satisfied beyond reasonable doubt, on the evidence summarized above, that the condition did not have its clinical onset within 2 years of the assault incident in Ubon. In particular, this is because of the unreliability of the evidence given by Mr Tanzer concerning his alcohol consumption patterns and the absence of evidence to meet the particular criteria, noted above, which go to make up the diagnosis of alcohol abuse.
Decision
54. The decision under review is affirmed.
I certify that the preceding 54 paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: ........................[Sgd]....................................
Research Associate
Date/s of Hearing 13 November 2007
Date of Decision 20 February 2008
Counsel for the Applicant Mr D Honchin of counsel
Solicitor for the Applicant Purcell Taylor Lawyers
Representative for the Respondent Mr J Stoner
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