Tyson and Repatriation Commission
[2000] AATA 457
•9 June 2000
DECISION AND REASONS FOR DECISION [2000] AATA 457
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/904
VETERANS' APPEALS DIVISION )
Re RODERICK EDWARD TYSON
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal The Hon Mr R N J Purvis, QC, Deputy President
Date9 June 2000
PlaceSydney
Decision 1. The Tribunal sets aside the decision under review and remits the matter to the Respondent to calculate and determine the percentage of the General Rate appropriate for the periods 7 April 1995 to 15 October 1998 and from 16 October 1998 consistent with the overall ratings for the respective periods as found in these reasons. 2. Liberty to apply as to the implementation of this decision.
(Sgd) R N J Purvis
..............................................
Deputy President
CATCHWORDS
Veterans' Affairs – disability pension – general rate – relevant war service – bilateral sensorineural hearing loss – post-traumatic stress disorder with alcohol dependence – subjective distress – manifest distress – functional effects – occupation – domestic situation – social interaction – leisure activities – current therapy – remitted to Respondent for calculations.
Veterans' Entitlements Act 1986
Guide to the Assessment of Rates of Veterans' Pensions (Fifth Edition)
REASONS FOR DECISION
The Hon Mr R N J Purvis, QC, Deputy President
This is an application by Roderick Edward Tyson ("the Applicant") for review of a Veterans' Review Board decision of 18 May 1999 setting aside the decision of a delegate of the Repatriation Commission ("the Respondent") made on 12 March 1996 and substituting a decision that the pension payable to the Applicant be assessed at 60% of the General Rate to operate from and including 7 April 1995 and at 70% of the General Rate from 16 October 1998.
In his application the Applicant contended that he had been "unfairly assessed" by the Review Board. The disabilities as accepted by the Respondent at the time of the hearing by the Board were:
Bilateral Sensorineural Hearing Loss.
389.10Bilateral Sensorineural Hearing Loss, unspecified
This disability has been assessed using the following assessment procedure:
Hearing and tinnitus (standard)
Post Traumatic Stress Disorder with Alcohol Dependence.
309.81 None Prolonged Posttraumatic Stress DisorderThis disability has been assessed using the following assessment procedure:
Emotional and behavioural (standard) (T7/24)
Of more recent date the condition lately described has been determined to be more accurately defined as general anxiety disorder with alcohol dependence.
THE HEARING:At the hearing the Applicant was represented by Mr Neil Dawson of counsel and the Respondent by Mr Peter Godwin, a departmental advocate. The Applicant gave evidence and was cross-examined.
The documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were received and marked as Tribunal exhibits T1 – T21. The following documentary material was tendered and marked accordingly:
Exhibit A B C D E 1 2 3 4 Description Medical Report of Dr Graham Altman dated 30 September 1999 Chronology of Applicant's applications Ratings History – TABLE 4.1 GARP V – Chapter Four Ratings Hearing/Tinnitus -Agreed position Medical report by Dr D Lovell dated 14 September 1999 Hearing Impairment Worksheet (SND) dated 8 May 2000 Audio Clinic report dated 11 February 2000 Emotional and Behavioural Condition - Medical Impairment Assessment, dated 15 February 2000
After some discussion at the hearing before the Tribunal between the representatives of the parties, it was agreed (Exhibit E) that as to the hearing and tinnitus condition of the Applicant, the relevant impairment rating was:
"12.3.96 - T.7 p26
HEARING + TINNITUS 10
22.12.98 - T17 p60
HEARING 1
TINNITUS 5
11.2.00. Ex 3
HEARING 7
TINNITUS 5"
THE RELEVANT WAR SERVICE AND DISABILITIES EXPERIENCED:
The Applicant, in his claim for Disability Pension and Medical Treatment made on 5 July 1995 detailed the "accidents, injuries or illnesses" suffered by him during service as:
"PTSD & ALCOHOL when I was in South Vietnam on the HMAS BRISBANE I was in radio contact with other ships and I heard about a mate of mine AB Butterworth who I joined up with, who was killed on HMAS HOBART by a missile from a US helicopter while serving in South Vietnam. This worried me greatly in case it happened to us. I often think about these things and I think it affects me a lot, and now I drink to excess to try to forget these things." (T3/11)
The Applicant claimed that he suffered from hearing loss and tinnitus caused by excessive noise from radio VHF/MF, communications headsets and exposure to artillery. The "PTSD & ALCOHOL" were said to be consequent upon "the traumatic events in South Vietnam".
THE DECISION OF THE VETERANS' REVIEW BOARD:The Board in its determination considered an appropriate rating as applicable to two periods and stated:
"The Board first turned to consider the psychiatric evidence and the veteran's evidence to assess an impairment rating for the period 7 April 1995 to 15 October 1998, the day before Dr Altman's report of 16 October 1998. Having regard to this evidence the Board made the following findings:
…
[overall rating 25]
…
In assessing the second period, that is from 16 October 1998 when Dr Altman said that his impairment rating was 48 points,… The Board then conducted an assessment of the veteran's generalised anxiety disorder. In carrying out this exercise as well as the earlier assessment of this disability the following evidence was relevant. The veteran told the Board that he took a couple of days a month off work, usually half days. Dr Altman rated occupation Table 4.1 at 6 points with the comment 'major difficulties with loss of productivity'. … Dr Dinnen in his report … rated the veteran at 2 points with the comment 'short periods of absence from work'. On the evidence the Board finds that Dr Dinnen's rating is closer to the facts but the Board believes that a rating of 1 is more apt meeting the criteria in the guide of 'Exacerbation of symptoms may cause occasional days off work'.
The Board took into account its own observations of the veteran in giving evidence when considering a rating for manifest distress under Table 4.2. Dr Altman indicated 15 points while Dr Dinnen indicated 10 points. The Board felt that a rating of 6 was more appropriate …
After a careful consideration of the psychiatric evidence and the veteran's evidence the Board considered the following ratings to be appropriate:
…
[overall rating 37]
…
Having considered all of the material available to it, and for the reasons given above, the Board is reasonably satisfied that pension should have been paid at 60% of the General rate from 7 April 1995 being the date from which his disabilities were accepted as being war caused until 15 October 1998; and then at 70% of the General rate with effect from 16 October 1998 being the date of Dr Altman's report showing a deterioration in his generalised anxiety disorder." (T2/7-9)
REVIEW UNDER SECTION 31(1) OF THE VETERANS' ENTITLEMENTS ACT ("the Act"):
On 8 April 1999 a delegate of the Respondent made a determination to the effect that:
"The determination of 12 March 1996 is reviewed under section 31(1) of the Veterans' Entitlement Act 1986.
The determination that 'post traumatic stress disorder with alcohol dependence' is revoked with effect from 12 March 1996, being the date of the original decision.
Generalised anxiety disorder with alcohol dependence is determined to be a war caused disease. This decision takes effect from 7 April 1995. Pension is continued at 50% of the General Rate from that date." (T19/64)
The delegate stated that:
"Subsequent investigation has established that you did not directly experience a life threatening trauma during operational service. This indicates that a diagnosis of PTSD is not warranted in your case. Medical advice is that the appropriate diagnosis of your psychiatric condition is 'generalised anxiety disorder with alcohol dependence'."
The delegate, consequent upon the revocation of the earlier determination, proceeded to decide the claim for generalised anxiety disorder with alcohol dependence and found that the Applicant fell within the category:
"Experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder. 'Stressful event' means an occurrence which evokes feelings of anxiety or stress." (T19/65)
The delegate found that a reasonable hypothesis existed of a causal connection between generalised anxiety disorder and operational service and accepted generalised anxiety disorder with alcohol abuse as war-caused with effect from 7 April 1995, being three months prior to the date of lodgment of the relevant claim. The amendment of the psychiatric diagnosis did not alter the rate of pension previously awarded.
THE EVIDENCE BEFORE THE TRIBUNAL:
The Applicant:
The Applicant continued in his service with the Royal Australian Navy following his time in Vietnam and, at the time of the hearing before the Veterans' Review Board, he was working at Royal Edward Victualling Yards at Pyrmont supervising administration and security. He said:
"… that the NAVY knew nothing about his psychiatric condition and that he had never received any treatment nor received any advice from the Navy regarding his work and any effects his post traumatic stress disorder and alcohol dependence might have had on the performance of his duties. … he believed that these problems did impact on his work and he was generally able to take the odd day off (1 day per week, or a couple of days per month) without ever notifying Navy medical authorities or his superiors.
… He told the Board that he had never been treated by Navy authorities for his alcohol dependence." (T15/45)
In his evidence given at the hearing before the Tribunal, the Applicant stated that consequent upon his position being "civilianised" he formally resigned from the Navy in 1999, the position being transferred to the Commonwealth Public Service where he has remained, carrying out work much the same as before. He is a security officer ensuring that guards perform their duty, and has the responsibility of supervising staff. He said that over the preceding six months he, on average, took off two or three days each month on account of his "distress". He had no difficulty in his relationship with his supervisor but with regard to those that he supervises, the relationship is "is not very good. I am intolerant with them, arguments occur and I am accused of being abusive towards them". He said that he had little interaction with his colleagues.
The Applicant is the father of three children, now aged 28, 27 and 21 years. The relationship between the Applicant and his children is "distant. They are getting on with their own pursuits". Although the children now are all living at the Applicant's home, the two oldest having returned this year, he said that he has little contact with them. There is always conflict within the home, arguments occur on account of his intolerance and, according to him, the members of the family "have learned to live with it". He does not himself do very much around the house, he cuts the grass when it is needed but does not do any home maintenance and does not get involved with the garden. The Applicant said that he was frequently distressed by the way he felt and the thoughts that he experienced, "little things go wrong at home and at the workplace". At work he becomes stressed when guards do not follow instructions and it is then that he is intolerant and abusive. In the domestic environment he is frequently anxious and distressed and "just wants to get away from everything". He said that his distress and his consequent anxiety and the arguments occur two to three times a week. When asked about his leisure time activities he said that he did not do "anything very much", he does "a bit of reading, a bit of television watching and reads papers a little bit". The Applicant was not able to remember when he last went out of an evening.
The Applicant did say that he intends to continue his employment until he is 55. He was born on 5 October 1945.
Medical Specialists:
The Applicant was, in October 1995, referred by the Respondent to Dr G Altman, Consultant Psychiatrist, for a report. In his observations and opinion expressed under date 19 February 1996 Dr Altman, after detailing the relevant case history including the service experience and its affect upon the Applicant as narrated by him, stated:
"In addition he presented with a number of significant depressive symptoms. He presented with low mood, sleep disturbance and diurnal variation in mood, low appetite, low energy, low libido, poor confidence and motivation, impaired concentration, he had stopped enjoying most activities, he was not mixing with people as he used to, he had feelings of worthlessness, he was making big issues out of relatively minor issues and he described the future as 'not bright'. There was no suicidal ideation.
…
In summary, in my opinion as a result of his Vietnam experience Mr Tyson suffers from a chronic Post-traumatic Stress Disorder, from a (Major) Depression and from Alcohol Dependence. In my opinion his psychiatric impairment according to Table 4 from the Guide to the Assessment of Rates of Veterans' Pensions is 30 points. In time his psychiatric impairment may become 45 points. At the present time he is taking antidepressant medication.
It is likely that he will need long-term psychiatric treatment." (T6/22)
In a report of 26 February 1997 to the Vietnam Veterans' Association, Dr Altman noted his continuing treatment on a regular basis of the Applicant and stated:
"I am still of the opinion that as a result of his Vietnam experience he suffers from the aforementioned psychiatric disorders [a chronic Post-traumatic Stress Disorder and from an associated Major Depression and Alcohol Dependence], that his current impairment rating is 30 points and that in time his impairment rating may become 45 points.
He continues to have symptoms of both a Post-traumatic Stress Disorder and Major Depression. His alcohol intake continues to be excessive.
There is ongoing marital conflict – ' there is always a fair bit of irritability between my wife and myself'. In terms of work he stated that it is 'much the same' and that he is 'just coping'. It is likely that if he were not working in a military environment he would be much less likely to cope and in my opinion it is likely his impairment rating would be 45 points.
In terms of socializing he stated 'not really'. He tends to stay at home mainly – 'work around home'. In terms of hobbies he stated 'I haven't participated in hobbies for years'.
At the present time he is taking Lovan 20 mg in the morning." (T10/31-32)
On 16 October 1998, Dr Altman again reported on the condition of the Applicant and, after referring to his two earlier letters and the assessments that he had then made, continued by saying:
"Unfortunately Mr Tyson's above mentioned psychiatric disorders have deteriorated. I am now of the opinion that his war-related Post-traumatic Stress Disorder with associated Major Depression and Alcohol Dependence is severe. In my opinion his psychiatric impairment according to Table 4 from the fifth edition of the Guide to the Assessment of Rates Veterans' pensions is 48 points. …
Furthermore in my opinion in time he may become totally and permanently to work [sic] as a result of the above mentioned war-related psychiatric disorders alone and should that be the case then it may become necessary for him to apply for a 'T&PI' disability pension.
Mr Tyson's Post-traumatic Stress Disorder symptoms are severe. He continues to suffer from nightmares – 'they haven't stopped – not many nights go past that I don't (have the nightmares)', he has recurrent intrusive distressing thoughts about his war experiences, he suffers from flashbacks 'occasionally', he avoids the thoughts and reminders associated with his war experiences, he becomes distressed on exposure to reminders of his war experiences, he suffers from sleep disturbance and impaired concentration, he is generally far more irritable and he has an exaggerated startle reaction and he is generally hypervigilant.
Of particular concern is his deteriorating ability to cope and function adequately at work. In terms of work he stated that it is 'not good at all – I have to force myself (to go to work)'. He stated that 'I am not happy at all (at work) – I am very short with other people".
In terms of his marriage he stated that there are 'more downs than ups'. He stated that in his marriage he is 'irritable mainly and not tolerant'.
He continues to consume alcohol excessively – approximately six beers per day. In his spare time he stays at home to a large extent where he watches television and he will tend to 'read a little bit'. In terms of socializing he stated 'no'. In terms of friends he stated that he has 'one or two at work' and he does not socializes (sic) with them. Furthermore he stated that 'we haven't been out for a number of years'.
At present he is taking Aurorix 450mg in the morning." (T14/39-40)
On 10 November 1998 the Veterans' Review Board adjourned its hearing and sought referral of the Applicant to another psychiatrist in order to clarify a number of matters that had arisen including those relating to the Applicant's psychiatric disorders and whether the disorders were solely war-related, the major depression a separate disability and, if so, whether it was itself war-related. An assessment as to the degree of intrusion of the Applicant's disabilities upon his occupation was also sought.
The Applicant was referred to Dr A Dinnen, a consultant psychiatrist, with a request that a report be provided as to:
"· an appropriate diagnosis/diagnoses to answer his claim
·any causal relationship between the diagnosed conditions and his war service
·if Major Depression is diagnosed, if in itself (sic) is war-related
·assessment of the degree of intrusion the veteran's disabilities have on his occupation"
Under date 4 January 1999, Dr Dinnen detailed the Applicant's relevant case history, the history of the illness and, as more relevant to the present application, the problems that were at that time besetting the Applicant. Dr Dinnen, in his report, stated:
"The patient said that he believes he is intolerant with regard to family relationships and argumentative. He believes he behaves in a similar fashion at work. He tends to drink to relax, regardless of the opinion of others that he should reduce his intake. He has had occasional time off work, now two or three days a month, compared with perhaps one day a month some time ago. He believes his level of tension is increasing.
The patient told me he has been working for the past three years as a security manager with the Navy at Pyrmont. He is stationed at REVY (Royal Edward Victualling Yard). He has reached the highest rank as a warrant officer, that he can as non commissioned officer. Through the years he has had various deployments and spent about 11 years at sea before he became shore based some 20 years go (sic). He said this was for the benefit of the family.
He has been married for 27 years. His wife is five years younger than he and they have been living in their home at Moorebank since 1975. There are three children. … The patient said most of the management of the children has been done through the years by his wife.
The patient emphasised that he has a poor relationship with his wife because of his irritability and drinking. He has often felt hopeless and inadequate through the years but never suicidal.
On review of the documentation I questioned him further about his symptoms of depression. He said he has had a general state of depression for many years but only became aware of it when he sought help three or four years ago. He said he has been aware however of his drinking problem and his level of tension for many years. He said he feels very depressed 'about everything because of these things because of the stress I am under'. He is aware of a general loss of interest in recent times, and has lost labido (sic) and sexual activity during the past two years. He has no hobbies although he use (sic) to like fishing but has not done so for years. He doesn't feel like making the effort. He maintains general interest in his family, but is not as close to his children as their mother who keeps him informed about developments. He is not able to fully confide in his wife, who has a simplistic view that if he stops drinking and forgets about his past experiences he would be better off.
…" (T17/53-54)
Dr Dinnen gave an overall emotional and behavioural impairment rating of 41. He commented upon the differences between the ratings of Dr Altman and himself as:
"… It can be seen that there are two points of divergence between my rating and his. He rates the manifest distress (4.1) of the patient at 15 compared to my rating at 10. I believe this is explained by Dr Altman's greater familiarity and knowledge of the patient who presents as rather phlegmatic and controlled but no doubt with Dr Altman his underlying emotional state is more easily revealed. A further point of divergence is in functional effects (4.3), which I have interpreted in accord with the guidelines at the bottom of the worksheet page, and rated at 1 compared with Dr Altman's 5, but on the other hand I have objectively seen a greater disturbance in the marital relationship (4.5) than has been acknowledged by the treating psychiatrist. All these differences I think reflect the difference between an independent assessing psychiatrist and a treating psychiatrist." (T17/56)
The diagnosis by Dr Dinnen was that:
"Notwithstanding the fact that the patient did not directly experience a life threatening trauma, which is commonly regarded as essential for the diagnosis of PTSD, in my experience serviceman (sic) in combat situations can suffer from what amounts to an anticipated PTSD, and there is some evidence that the generalised anxiety disorder which is the more common description of such a condition overlooks the importance of the specific threat of combat.
Further, the development of depression as part of a general psychiatric disorder such as PTSD or generalised anxiety disorder is well known and common clinically, and I do not believe that this warrants a separate diagnosis and evaluation. I regard the depression to be as much part of the diagnosed PTSD as the patient's alcohol abuse.
I agree with the Board that there are some elements in this patient's service which suggest that the diagnosis of PTSD is not warranted, but on balance I believe that it is probably the best overall description of his condition.
The alternative diagnosis of generalised anxiety disorder associated with alcohol dependence and dysthymic disorder, all consequent to service in Vietnam would still convey the same information clinically, and would be equally appropriate in my view but probably less palatable to the veteran and likely to lead to some loss of fact and self esteem." (T17/56)
Dr Lovell, a consultant forensic psychiatrist, also interviewed the Applicant and in his report (Exhibit 1) of 14 September 1999 stated inter alia:
"…
To address your specific questions:· Please advise the diagnosis of the veteran's psychiatric disability and aetiology.
Mr Tyson described a longstanding history of high trait anxiety with a spider phobia and a blood and injury phobia, pre-existent to his Vietnam service. He described considerable apprehension about what could have happened during his time at sea. There were no life threatening incidents and as such he could not be said to suffer from post-traumatic stress disorder. His anxiety symptoms suggest a generalised anxiety disorder. His alcohol intake is hazardous but has not caused him difficulties with the law, drink driving convictions, but has resulted in some marital friction. He would meet the criteria for alcohol abuse. His GARP score is 17. His lifestyle ratings are, according to table 22.1 / 3,22.2 / 1,22.3 / 3,24.4 / 2,22.5 / 1. To the nearest integer his final lifestyle rating is 2 points.· You asked me in particular, to comment on the reports of Dr Altman.
Many of the difficulties that Mr Tyson described to Dr Altman appear to be due to alcohol abuse rather than major depression. In particular, sleep disturbance, irritability and feelings of detachment. Whilst Mr Tyson stated that he drank more on weekends he did not state that his intake was as great as twelve to fifteen drinks of alcohol. Whilst Mr Tyson described some anxiety symptoms, it is not clear to me what the life threatening event he witnessed was and in view of his earlier anxiety difficulties, I do not believe that he meets the criteria for a post-traumatic stress disorder. Fluctuations in his mood appear to be due more to marital difficulties associated with his drinking."
In his most recent report of 30 September 1999 (Exhibit A), Dr Altman reiterated what he had earlier stated in his report of 16 October 1998, namely that the Applicant's psychiatric impairment was 48 points, and said:
"… in my opinion in time he may become totally and permanently unfit to work as a result of the above mentioned war-related psychiatric disorders alone …"
Dr Altman continued by saying:
"There has been no major change in Mr Tyson's war-related psychiatric disorders. In my opinion he still suffers from a war-related chronic Post-traumatic Stress Disorder with an associated Major Depression and Alcohol Dependence and in my opinion his impairment rating is still 48 points … Furthermore in my opinion in time he may become totally and permanently unfit to work as a result of the above mentioned war-related psychiatric disorders alone."
Dr Altman further stated that:
"He continues to suffer from severe symptoms of a Post-traumatic Stress Disorder. In terms of nightmares he stated 'I still have them'. He suffers from these nightmares approximately two to three times a week and the content of the nightmares is 'usually about different situations I find myself in – they normally end up with the gun firing – and that jolts me'. Furthermore he suffers from recurrent intrusive distressing thoughts about his war experiences approximately two to three times a week, he suffers from flashbacks 'probably two to three times a month', he continues to avoid the thoughts associated with his war experiences and he stated 'I like to try and push them away if I can' and he avoids some situations and activities associated with his war experiences – for example he avoids talking about his war experiences and he avoids watching war movies. He continues to be distressed by exposure to many reminders of his war experiences, he is generally far more irritable, he has an exaggerated startle reaction and he is generally hypervigilant."
THE REMAINING ISSUES FOR DETERMINATION:
The Tribunal is now to determine the appropriate overall rating for the Applicant's accepted psychiatric condition in respect of the periods 7 April 1995 to 15 October 1998 and from 16 October 1998. As already mentioned earlier in these reasons, agreement has been reached between the parties as to the rating appropriate to the Applicant's hearing and tinnitus. Once having determined the appropriate rating, the matter is to be remitted to the Respondent to calculate the percentage of the general rate for the two periods.
As to the period 7 April 1995 to 15 October 1998:
The Applicant contends that in the absence of there being any other evidence, the rating for this period should be that determined by Dr Altman in his reports of 12 February 1996, 26 February 1997 and 16 October 1998, namely 30 points. There was said to be no other evidence bearing upon this period, even be it that by the time the Veterans' Review Board handed down its decision on 18 May 1999 Dr Dinnen had reported his clinical findings and determinations but, as to the Applicant's condition as he then saw it. However, the Veterans' Review Board acted retrospectively in its conclusion giving no reasons for its findings as to the relevant tables, the Respondent having made its determination of 20 points but with no apparent or disclosed segregation over the various tables.
On the basis of the material placed before the Tribunal including the reports of Dr Altman and, more particularly, the affects detailed by him on pages two and three of his 1996 report (T6/21-22), the Tribunal sees no reason to not accept the opinion of Dr Altman and determine the functional loss (psychiatric) impairment rating for the above period at 30 points.
As to the period from 16 October 1998:The ratings as found by Drs Altman, Dinnen and Lovell, the Veterans' Review Board and as now sought by the parties are detailed below. The Applicant asks for the Tribunal to accept and adopt the ratings of Dr Altman, the treating psychiatrist on a regular basis over a number of years.
At Hearing
Dr Altman Dr Dinnen VRB Dr Lovell Applicant Respondent14.10.98 4.1.99 18.5.99 17.10.99
Table 4.1 15 15 15 3 15 6
Table 4.2 15 10 6 3 15 10
Table 4.3 5 1 1 2 5 2
Table 4.4 6 2 1 1 6 2
Table 4.5 3 5 5 2 3 3
Table 4.6 6 6 6 5 6 5
Table 4.7 6 3 3 3 6 5
Table 4.8 5 5 5 3 5 3
Overall
Rating 48 41 37 17 48 29
It is then necessary for the Tribunal to consider each functional loss table and make an appropriate finding.
The Applicant contends that the evidence of the treating psychiatrist should be accepted in preference to that of specialists who observed the Applicant on perhaps only one occasion. If this view is correct, then it might negate the value of a report from any specialist when compared with that of a frequent observer. Nevertheless there is merit in recognising the value of the opinion of the health provider who has monitored a condition over a period and sought to diagnose a condition in and of deciding upon appropriate treatment in contrast to that of the forensic specialist. The Tribunal does not agree, however, with the submission made on behalf of the Applicant to the effect that the opinion of a treating psychiatrist should be accepted unless there is "persuasive evidence" to the contrary. It is the condition as seen by the medical specialists, including the treating psychiatrist, in the context of all of the evidence that has to be considered, assessed and then located in the general description and outcome material specified under each functional loss in Chapter 4 in the Guide to the Assessment of Rates of Veterans' Pensions (Fifth Edition).
In this matter no one of the medical specialists was called for cross-examination and it is left to the Tribunal to make appropriate factual determinations.
Table 4.1 – Subjective Distress:On behalf of the Respondent it was contended that the Applicant only experienced frequent symptoms causing moderate distress and was only sometimes unable to distract himself from the distress. The Tribunal, having considered all of the evidence, sees the Applicant as one experiencing persistent symptoms causing considerable distress to him. Relief from distress is difficult to achieve. The appropriate impairment rating consistent with the evidence is 15.
Table 4.2 – Manifest Distress:On behalf of the Respondent it was submitted that the Applicant experienced obvious distress and preoccupation with his symptoms, this being evident to casual observers and persons unfamiliar with him. The Applicant maintained that the condition was one of obvious continual distress. The Tribunal is not satisfied that the latter correctly describes the Applicant's present condition and considers an impairment rating of 10 appropriate under this table.
Table 4.3 – Functional Effects:It was contended on behalf of the Applicant that there was a marked interference with function in many every day situations. There was an evidenced inability to cope psychologically on a day to day basis and the Applicant suffered some interference with his functions. The Respondent contended that the Applicant was able to carry out his work-related obligations and some domestic tasks such as grass cutting. The Tribunal considers that there is a moderate interference with functions in many every day situations, giving a functional loss of three points.
Table 4.4 – Occupation:It was contended on behalf of the Applicant that he may be unable to work and is working with marked loss of time. It was suggested that, whilst experiencing difficulty at work, this might be accepted by a tolerant employer. There was no evidence as to the latter. On behalf of the Respondent it was contended that the Applicant is able to work under his supervisor even be it that he might be abusive and intolerant to subordinates. He was presently absent from work two to three days per month. An appropriate rating is one reflecting short periods of absence from work, that is two points.
Table 4.5 – Domestic Situation:On behalf of the Applicant it was contended that there was continuing conflict within the family, this evidenced in the report of Dr Dinnen and detailed in the reasons of the Veterans' Review Board. Marital problems have existed and continue at the present time. The Applicant and his children avoid each other. The Respondent, on the other hand, maintained that a status quo has come into place even be it that the Applicant distances himself from the children. The Tribunal is of the view that there is continual conflict between the Applicant and his family members and a rating of 5 is appropriate.
Table 4.6 – Social Interaction:Counsel appearing on behalf of the Applicant maintained that the Applicant is without significant interpersonal relationships with friends and that there has been a reduction in social interaction. It was said that there existed an unusual relationship with the children and with his wife. The Tribunal is of the opinion that the evidence discloses a general social withdrawal by the Applicant and that a rating of 6 is appropriate.
Table 4.7 – Leisure Activities:On behalf of the Respondent it was contended that though there was evidence of a lack of engagement by the Applicant in leisure time activities, a rating relevant to "a loss of interest" in those recreational pursuits was appropriate. The Applicant's counsel contended that the applicable rating was one reflecting a substantial reduction in most recreational pursuits. There was little evidence as to recreational pursuits that had been engaged in by the Applicant in times gone past. However, the evidence did show a loss of interest on his part in such pursuits at the present time and a rating of 5 is here appropriate.
Table 4.8 – Current Therapy:On behalf of the Applicant, it was maintained that there was an evidenced need for intensive specialist psychiatric treatment on an out-patient basis including medication. The Respondent maintained, on the other hand, that whilst there was current therapy, the treatment was regular and not intensive. The Tribunal is of the opinion that a need for treatment has been shown in that the Applicant attends Dr Altman approximately once every six weeks and is on medication. A rating of 5 is appropriate.
Collating the various impairment ratings, as found by the Tribunal and set forth above and applying the method of calculation of impairment rating as detailed in the Guide, a rating of 15 + 10 + 6 + 5 + 5 results in an overall rating of 41.
DECISIONFor the reasons set forth above, the decision under review is set aside. The matter is remitted to the Respondent to calculate and determine the percentage of the General Rate, appropriate for the periods 7 April 1995 to 15 October 1998 an from 16 October 1998, consistent with the overall ratings for the respective periods as found in these reasons.
Liberty to apply as to the implementation of this decision.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of:
The Hon Mr R N J Purvis, QC, Deputy President
Signed: .....................................................................................
AssociateDate of Hearing 9 May 2000
Date of Decision 9 June 2000
Solicitor for the Applicant Mr N Dawson, R L Whyburn & Associates
Advocate for the Respondent Mr P Godwin, Department of Veterans' Affairs
0
0
0