Wood and Repatriation Commission
[2003] AATA 1041
•15 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1041
ADMINISTRATIVE APPEALS TRIBUNAL V2001/439
VETERANS’ APPEALS DIVISION
Re: William Colin WOOD
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: P.J. Lindsay, Senior Member,
Associate Professor J.H.Maynard, Member
Date: 15 October 2003
Place: Melbourne
Decision:The Tribunal affirms the decision under review refusing Mr Wood’s claim for disability pension.
. . . . . . . . .. . . . . . . . . . . . . . . .
Senior Member
(P.J. Lindsay)
© Commonwealth of Australia (2003)
CATCHWORDS
VETERANS’ AFFAIRS – diagnosis of anxiety disorder – whether connected with service - diagnosis of depressive disorder – whether connected with service – decision affirmed.
Veterans’ Entitlement Act 1986, ss. 9, 120, 120A, 196B
Repatriation Medical Authority Statements of Principles:
- Instrument No. 58 of 1998 concerning Depressive Disorder
- Instrument No. 48 of 1994 concerning Generalised Anxiety Disorder
- Instrument No. 1 of 2000 concerning Generalised Anxiety Disorder
Repatriation Commission v Hill [2002] FCAFC 192
Benjamin v Repatriation Commission (2001) 34 AAR 270
Repatriation Commission v Budworth (2001) 66 ALD 285
Repatriation Commission v Deledio (1998) 49 ALD 193
Fogarty v Repatriation Commission [2003] FCAFC 136
Repatriation Commission v Smith [1987] 74 ALR 537REASONS FOR DECISION
P.J. Lindsay, Senior Member
Associate Professor J.H.Maynard
1. This is an application under the Veterans’ Entitlements Act 1986 (the Act) for review of a decision by the Repatriation Commission (the Commission) which refused a claim made by William Colin Wood (the veteran) for generalised anxiety disorder as war-caused under the Act. The Veterans’ Review Board (the Board) amended the diagnosis on 27 February 2001 to read depressive disorder not otherwise specified, but affirmed the decision as varied.
2. Mr D. De Marchi, solicitor, appeared for Mr Wood. The Commission was represented by Mr K. Rudge from the Department of Veterans’ Affairs (the Department). The applicant and two consultant psychiatrists, Dr E. Cole and Dr L. Walton, gave evidence at the hearing. The Tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and the exhibits tendered during the hearing.
Background
3. Mr Wood served in the Australian Army from 12 July 1943 to 2 December 1946 which is a period of operational service.
4. Mr Wood made a claim for disability pension in respect of ‘nervous condition / stress’ on 11 December 1998, stating that the condition was caused, contributed to or aggravated by trauma experienced on service (T5). His other claims in respect of ischaemic heart disease and bilateral sensorineural hearing loss were accepted. In assessing the claim for the nervous condition, the Department obtained a report dated 8 February 1999 from Dr N. Rose, consultant psychiatrist (T6). The history referred to service in New Britain in the infantry. Mr Wood used to go on patrol and was apprehensive but there was no contact with the Japanese. He recalled an air raid which did not result in casualties. He did not see anyone injured or killed. After noting that Mr Wood had denied suffering from any nervous problems prior to his heart attack on 22 November 1998, Dr Rose concluded that Mr Wood did not suffer from a psychiatric illness.
5. On 3 March 1999 the Commission advised Mr Wood that his claim for generalised anxiety disorder had been refused because the diagnosis of the condition could not be confirmed (T7). Mr Wood applied to the Board for review of this decision. There was a report prepared by Dr Parkin, consultant psychiatrist, dated 8 December 1999 (T10) in the material before the Board. Dr Parkin, who interviewed Mr Wood and his wife, found that Mr Wood did not have the degree of anxiety to warrant a diagnosis of Generalised Anxiety Disorder but that he did have quite significant episodic mood disturbances that have led to disruptive behaviour over the years. Instead, Dr Parkin diagnosed depressive disorder not otherwise specified. In relation to whether this is war-caused Dr Parkin stated:
It would thus seem that the distress he experienced during his war service has played a part in the development of this disorder even though this disorder did not have its clinical onset until the sixties or seventies. Such a delayed onset is accepted with Post-traumatic Stress Disorder. I therefore believe that there is a reasonable hypothesis linking the stresses that he experienced as part of his service with the onset and recurrent episodes of his mood disorder not otherwise specified.
The Board amended the diagnosis to depressive disorder not otherwise specified but affirmed the decision as varied due to the finding by Dr Parkin that the condition’s clinical onset was well after the two year requirement in the relevant Statement of Principles (SoP) being Instrument No 58 of 1998. The applicant has appealed to this Tribunal.
6. In opening Mr De Marchi said that the claim is for acceptance of a condition of anxiety, depression or generalised anxiety disorder, whichever is the correct label. He referred to alternative hypotheses connecting the relevantly diagnosed condition to Mr Wood’s operational service.
7. Mr Wood’s claim for pension is related to a period of operational service. Accordingly the standard of proof in respect of causation of a war-caused disease is that prescribed by s.120(1) of the Act. The Tribunal will determine, pursuant to s.120(1), that his generalised anxiety disorder or some other psychiatric condition for which a diagnosis may be made was war-caused, unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be so satisfied if of the view that the material before it does not raise a reasonable hypothesis connecting that psychiatric condition with the circumstances of his service: s.120(3). Since his claim for pension was lodged after 1 June 1994, s.120A of the Act applies and the Tribunal is to assess the reasonableness of the hypothesis in accordance with any Statement of Principles (SoP) issued by the Repatriation Medical Authority (RMA). The Tribunal will refer to the relevant SoPs in force at the time of decision and, if necessary by reference to SoPs in force on 3 March 1999, the date of the Commission’s decision.
issues
8. The first issue to be determined is whether Mr Wood’s psychiatric symptoms constitute an injury or disease, and, secondly, if they do, whether the injury or disease is war-caused within the meaning of the Act.
legislative framework
9. Having regard to ss. 120 and 120A of the Act and the principles expressed in cases including Repatriation Commission v Hill [2002] FCAFC 192, Benjamin v Repatriation Commission (2001) 34 AAR 270, Repatriation Commission v Budworth (2001) 66 ALD 285, Repatriation Commission v Deledio (1998) 49 ALD 193, we must undertake the following steps in the following order in this case:
·characterise or identify the psychiatric problems exhibited by the applicant (Benjamin at 283) on the basis of our reasonable satisfaction (i.e. on the balance of probabilities: Fogarty v Repatriation Commission [2003] FCAFC 136, Repatriation Commission v Smith [1987] 74 ALR 537). SoPs made under the Act are not relevant to the question of diagnosis (Benjamin at 280);
·identify the hypothesis connecting the condition so identified with the circumstances of the particular service rendered by the applicant;
·consider if there is material pointing to the hypothesis; and
·consider if the hypothesis is reasonable taking into account, if applicable, the relevant SoP in force at the time that the Tribunal undertakes the review of the decision. If other SoPs were in force at the time the claim was lodged, the hypothesis must be considered against those SoPs if the applicant is not successful when considered against the current SoP.
If the hypothesis is reasonable, it is taken to be reasonable for the purposes of the Act unless:
·any one or more of the facts relied on in the material pointing to the hypothesis is disproved beyond reasonable doubt; or
·the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
Evidence
10. Mr Wood was 18 when he joined the Army. He was sent to Warwick for basic training. He said his instructors were good and he did not feel rejected by the other soldiers. At one stage during training he was admitted to hospital in Warwick because he was having trouble with his ears. Seeing wounded soldiers in the hospital, some with their limbs missing, distressed him. At the time he was also distressed when his battalion went to Bougainville without him. On discharge from hospital he learnt that some of his friends had been killed in Bougainville. The news distressed him and made him feel terrible. Mr Wood said he tried to find out more information about his mates and that is when he started to be a bit depressed and it gradually got worse. He recalled those feelings as being hollow inside. He lost interest in everything, felt unwanted and uncared about. These feelings continued until he rejoined his battalion in New Britain and Mr Wood said they have continued, on and off, to the present. His evidence was that, at times, he has not coped well with his feelings. He has thought about suicide but after a few days the feelings pass.
11. Mr Wood was a leading scout when on patrol at Jacquinot Bay in New Britain. During patrols he could hear the Japanese talking but he was unable to see how close they were. He would hear small arms fire. On returning to camp after patrols he felt very distressed. He thought 78 men in his battalion were killed. He remembered that on the first day he arrived in New Britain a Japanese plane attacked his battalion, dropping bombs. He was in a slit trench and another soldier, who was shaking, jumped in on top of him. Asked for his reaction, Mr Wood said he did not have time to be frightened because it happened so quickly but he felt very lucky.
12. After discharge from the Army, Mr Wood did not settle into civilian life easily. He said that coming back to Australia was a strange feeling, he could not settle down so he took off and travelled to Adelaide and Western Australia. On return to Victoria, he began an Army retraining course in carpentry. He then found work in the building industry. He was still quite fit and he enjoyed the social life of his football club. In 1956, he married and subsequently had four children. His wife left him at some time during the 1970s for a period of approximately six months. From 1979 to 1989 Mr Wood worked as a hardware salesman and from 1989 to 1995 or thereabouts, he was a self-employed builder undertaking home renovations. He worked alone. His recollection was that he did not notice any problems, which he described as getting depressed, until around the mid 1950s when he was working as a painter. As his problems became worse, he started to move around Victoria and changed jobs frequently. He said younger workmates were difficult because they did not like working with an ex-soldier.
13. Mr Wood said in his evidence that he could recall working for ICI in approximately 1956. If he felt unwell due to his depression, he would lie behind the switchboard for a few hours. He did a similar thing when he worked as a hardware salesman between 1979 and 1989. In his oral evidence, Mr Wood said that he left home in the 1970s, and travelled to Adelaide. On his return home, his wife took him to a doctor, who prescribed tablets for depression. Mr Wood told Dr Cole that he stopped taking the tablets because they were too strong. He told Dr Cole that he had taken an overdose of aspirin at some time in the mid-1970s. This occurred after his wife left him. She had, he told Dr Cole, suspected him of having an affair. At that time, he had been out of work for some while and there were pressures within the family.
14. Mr Wood said that his feelings of depression have continued since service. They come on every couple of months, he said, and last for a day or two. They occur with less frequency than they did in the past, as they used to come on every month or even every fortnight. When they occur, he will lie down in his room and not talk to anyone until his feelings of depression pass. He said that he never thinks about the war and that his feelings of depression are not brought on by recollections of his wartime experiences. He did not speak to his doctors about his wartime experiences before he commenced his claim and they did not ask him about it. He said that he does not like opening up to doctors.
15. In cross-examination Mr Rudge referred him to the following passage in Dr Parkin’s report:
Both he and his wife have put the onset of these moods to after the marriage. She states it started about the time that they first had kids and he puts in down into the mid seventies when he went walkabout although he says he had some episodes before that. They both believe that worry over the children was a significant feature in the onset of this disorder but that worries over the stresses of war also played a part.
Mr Wood said he had forgotten dates and might be mixed up and some of the questions confused him, but he thought it was around the mid 1950s that he started to have mood symptoms.
16. His ischaemic heart disease has caused him to become apprehensive and careful not to over-exert himself. He sometimes gets frustrated with his limitations and gives up on what he is doing. He said he still does the odd, little renovation job.
Dr Cole
17. Dr Cole, consultant psychiatrist, first examined Mr Wood on 19 July 2001 and provided the applicant’s solicitors with a report dated 31 July 2001 (Exhibit A1). Mr Wood told him that he served as an infantryman in New Britain from 6 January 1945 until 1 June 1946. Dr Cole noted that the applicant felt terrible when he was told that his colleagues were killed on a barge in Bougainville. He recounted his experiences on patrol in Jacquinot Bay where he could hear the Japanese, and the air raid which took place the night he arrived there. He recounted an incident that happened on training. He was struck in the head by shrapnel. He told Dr Cole that after the war he was very unsettled. Everything seemed strange; he could not settle down and was jumpy and easily startled. He was very anxious, worried and depressed. He had thoughts of suicide. Since the war he has been irritable, and has had trouble concentrating, remembering things, and sleeping but he does not suffer from nightmares. He also recounted his trip to Adelaide and subsequent treatment by a doctor who prescribed anti-depressants. Dr Cole noted that despite these symptoms, Mr Wood successfully completed a course in carpentry and worked as a carpenter until he retired at the age of sixty-four.
18. In Dr Cole’s opinion Mr Wood is suffering from a chronic anxiety state and reactive depression of mild to moderate degree. This condition has been present since discharge from the Army and is clearly related to war service. Dr Cole felt that Mr Wood met the requirements of the Statements of Principles for a diagnosis of generalised anxiety disorder or for a depressive disorder. He did not feel that treatment would have much influence upon the overall course of the condition.
19. Dr Cole’s evidence on the first day of hearing was that he diagnosed a mild to moderate generalised anxiety disorder and a depressive disorder, explaining that the conditions commonly go hand in hand. Dr Cole thought the depression was more episodic whereas the anxiety was more continuous. In addressing SoP 58 of 1998 concerning Depressive Disorder, which the parties agreed was the relevant SoP, ‘Depressive Disorder’ is defined as “the presence of major depressive disorder, dysthymic disorder or depression not otherwise specified … ”. The SoP then incorporates the relevant definition of each disorder as found in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). Dr Cole confirmed his diagnosis of ‘depressive disorder not otherwise specified’, rather than the alternatives. Dr Cole considered that the condition ‘recurrent brief depressive disorder’, which is a form of depressive disorder not otherwise specified, best described Mr Wood’s symptoms. In cross-examination, Dr Cole was asked whether Mr Wood’s condition satisfied the diagnostic criteria in DSM-IV for depressive disorder not otherwise specified. Dr Cole conceded that the applicant’s condition did not meet the criterion that requires a patient’s symptoms to cause clinically significant distress or impairment in social, occupational or other important areas of functioning.
20. Dr Cole prepared a supplementary report dated 5 March 2002 (Exhibit A3). Dr Cole noted from the transcript of the first day’s hearing that Mr Wood had given an account of his symptoms that was consistent with the history that he had been given, namely, that his symptoms were episodic rather than continuous. Dr Cole, however, felt inclined to question whether Mr Wood was in fact perfectly well between these episodes, postulating that they could represent acute exacerbations of a more chronic condition. Still, Dr Cole affirmed his diagnosis of depressive disorder not otherwise specified and, more specifically, the condition ‘recurrent brief depressive disorder’. Noting that DSM-IV’s criteria regarding brief depressive disorder refer to the depressive episodes lasting at least two days but less than two weeks and occurring at least once a month for twelve months, Dr Cole stated in his report:
I realise that Mr Wood does not fit this requirement exactly, but, allowing for the difficulty he obviously has in recalling the exact frequency and duration of the episodes, I believe this diagnosis best fits his condition.
I have also considered the possibility of other DSM diagnoses of which the next most appropriate would be that of Mixed Anxiety-Depressive Disorder, but as already indicated I feel the first diagnosis provides a better fit.
21. On resumption of the hearing Dr Cole affirmed his diagnosis of generalised anxiety disorder, noting from the history he received that Mr Wood was unsettled in the period following his discharge from the Army, and was jumpy, easily startled, anxious and worried about everything. Referring to the definition of ‘generalised anxiety disorder’ in SoP 1 of 2000, Dr Cole found that Mr Wood had relevant symptoms of being on edge, finding it hard to concentrate and difficulty sleeping. Dr Cole said he questioned the applicant as to whether those symptoms continued into later years and he said they were present since the war, although of late he felt he was getting a little better. Dr Cole noted that the chronic anxiety caused the applicant clinically significant distress and had led to marital problems and trouble in his work at different times. Although the depression might be episodic, Dr Cole thought that Mr Wood’s anxiety has been continuous and has been the background to the episodes of depression. Dr Cole said he had offered two diagnoses of generalised anxiety disorder and depressive disorder not otherwise specified, being a recurrent brief depressive disorder, and while he considered a third diagnosis of Mixed Anxiety – Depressive Disorder, he did not adopt it. Dr Cole acknowledged, however, that the diagnosis of recurrent brief depressive disorder did not meet each of the criteria in DSM-IV. Specifically, Dr Cole allowed that the history did not refer to depressive periods occurring at least monthly for twelve consecutive months.
Dr Walton
22. Dr Walton, consultant psychiatrist, interviewed the applicant on 10 September 2001 at the request of the respondent. In his report of 3 October 2001(Exhibit R1), Dr Walton recorded Mr Wood’s history of hospitalisation at Warwick, his learning of the deaths of his colleagues in Bougainville, the shrapnel incident and his experience on patrol in New Britain. Mr Wood reported persisting, intermittent depression. He told Dr Walton that in recent years his depression has eased and now arises every two months for a couple of days. He said that he is prone to anxiety, has difficulty sleeping, and has difficulty sustaining concentration. He denied problems with irritability and did not report significant difficulties with appetite or weight.
23. Dr Walton accepted that Mr Wood suffers from troublesome bouts of lowered mood and had contemplated suicide but concluded that the reduced frequency and duration of episodes of depression, and the lack of accompanying symptoms, could not lead to a diagnosis of any depressive condition. Dr Walton stated that “According to the history I obtained, the onset of the bouts of lowered mood date back to 1943 but I would not describe this as ‘clinical onset of the condition’ as there has not been a persisting condition as such.” Dr Walton also considered SoP 58 of 1998 concerning Depressive Disorder. Although conceding that it was possible Mr Wood fulfilled the requirements of having suffered a severe psychosocial stressor, Dr Walton stated that he did not fulfil the requirement that his depression be clinically significant. In this regard, Dr Walton observed “I note that for the condition to be considered ‘clinically significant’ is defined by warranting ongoing management, which may involve regular visits to a treating practitioner. This veteran seems to have sought psychiatric treatment on one occasion only around 1976.” (Exhibit R1) Finally, noting the consensus of psychiatric opinion, Dr Walton agreed that a diagnosis of generalised anxiety disorder could not be sustained.
24. On 8 October 2001 Dr Walton provided a further report (Exhibit R2). In this report, Dr Walton acknowledged that he had been asked to comment on the opinion of Dr Cole. He stated that nothing in Dr Cole’s report led him to alter his previous opinion. Dr Walton disagreed with Dr Cole’s view that it was merely academic to distinguish between the diagnoses of generalised anxiety disorder and depressive disorder.
25. Dr Walton then provided a later report dated 9 April 2002 (Exhibit R4). In this report, Dr Walton commented on the applicant’s oral evidence and Dr Cole’s report dated 5 March 2002. Dr Walton was not moved to alter his initial opinion that the infrequency of the depressive episodes especially of such short duration, did not warrant a formal clinical diagnosis. Nevertheless Dr Walton accepted that Dr Cole was entitled to make the diagnosis of depressive disorder not otherwise specified and stated that there are no readily acceptable grounds for resolving differences of opinion between diagnosing clinicians. In summary Dr Walton stated:
If my contention is accepted, that is, that the veteran may have suffered from more severe periods of depression, which might have attracted clinical diagnosis at the time, but that the overall background was not one of any persisting depressive disorder, then such depressive reactions, essentially similar in nature in response to adverse personal circumstances, would be described as discrete episodes.
If it is accepted that the veteran is suffering from a chronic depressive disorder, then the various adverse events, service-related and otherwise, which he highlights, would be properly classified as aggravating factors on a background of long-term illness.
26. In his oral evidence Dr Walton agreed that Mr Wood had experienced potentially psychologically traumatic events throughout service but in his view, it is the consequences of the trauma that are relevant. In this regard Dr Walton felt that on the balance of probabilities, Mr Wood did not have a psychiatric condition. Dr Walton confirmed his opinion that Mr Wood did not suffer from clinical depression. In his opinion, although there were episodes of depression over time, there was a lack of sufficiently frequent or severe lowered mood over time. Mr Wood failed to demonstrate any disturbance of appetite or weight, he reported only a mild form of insomnia not typical of a depressive type, he did not talk about suicide, he did not exhibit psycho-motor retardation, and his actual depression was not very severe. He conceded, however, that a diagnosis of depressive disorder not otherwise specified is a very subjective opinion and that he would not be surprised if others held a different view. He also agreed that if it was established as fact that Mr Wood’s depressive feelings were more of less continuous as opposed to intermittent and episodic, a greater weight should be placed on a diagnosis of a depressive disorder not otherwise specified.
27. Further, Dr Walton confirmed his opinion that the applicant was not suffering from an anxiety disorder. Mr Wood described symptoms such as “feeling hollow”.. These symptoms are more in line with depression than with anxiety. He agreed it was not uncommon for a degree of anxiety to accompany depression but said that Mr Wood’s anxiety when confronted with adverse circumstances was within normal limits. Generally there is a predominance of one mood state over the other and Mr Wood demonstrated a predominance of depression over anxiety.
28. In cross-examination Mr De Marchi asked Dr Walton whether it would be appropriate to diagnose ‘Mixed anxiety and depressive disorder’, a condition that was assigned the code F41.2 in the International Classification of Diseases, 10th revision (ICD-10). Dr Walton’s response was that he would not make such a diagnosis because he obtained a history of a number of discrete depressive episodes and, though the applicant had relatively frequent feelings of anxiety, they were relatively trivial in nature. Despite a patient having some symptoms of anxiety and also some symptoms of depression, Dr Walton explained that a clinician must apply judgement before making a diagnosis. He concluded that Mr Wood was not suffering from a valid clinical entity.
Dr Rose
29. In his report of 8 February 1999 (T6) Dr Rose noted Mr Wood’s service and recorded the air raid, during which nobody was hurt, and there was no contact with the Japanese. Dr Rose reported that Mr Wood had not seen anybody hurt or killed during his service. Generally, he wrote, it was a good experience although when Mr Wood was on patrol he was, like most soldiers, apprehensive. Dr Rose went on:
HISTORY FOLLOWING WAR SERVICE:
After the war, Mr Wood felt a little lost and unable to settle for a few years but he then studied carpentry under an ex-servicemen training scheme. He worked as a project builders carpenter.
Mr Wood married at the age of 31. His marriage has been happy, although two of his daughters have been some (sic) wayward. One daughter, who is 30 years of age, still has problems in settling down.
After the war Mr Wood played football, but he has had no hobbies or interest in later years apart from watching league football matches.
PSYCHIATRIC HISTORY.
Mr Wood denied having any nervous problems. He was emphatic that he had never been anxious or depressed before his heart attack on 22/11/98 , which caused him to be admitted to the Western Hospital for two weeks. Since his heart attack Mr Wood has been unable to do any heavy lifting or other gardening work, so he has become bored. That is the source of what appears to be a very mild depression, which is not really of clinical significance. I would regard the depressive symptoms as not being representative of any illness. Mr Wood has never had any good sleep even before joining the army. His appetite, his energy level, his concentration and memory are all fine.
DEVELOPMENTAL HISTORY.
Mr Wood grew up on a soldiers settlement in the Western district Victoria. His father who was a World War I veteran worked as a farm hand and his mother was a housewife. Mr Wood is one of seven children, five of whom are still alive. He remembers having a happy and secure childhood. He went to school to the level of the year eight, and then went to work at the age of 14 doing factory work until he joined the army at the age of 18.
Mr Wood is a non-smoker, and he has never drunk much alcohol. From a medical point of view, apart from his heart-attack, his only problem has been that of hearing loss. He has never had any psychiatric problems.
CONCLUSIONS.
I could find no evidence of either generalized anxiety disorder or of any other psychiatric condition. There is no evidence of the sort of war experiences, which might have possibly lead to the development of an anxiety disorder. There is no evidence of any particular war stresses. I have not filled in the Veteran’s Psychiatric Impairment Assessment Form since Mr Wood does not suffer from a psychiatric illness.
Dr Parkin
30. Dr Parkin had seen Dr Rose’s report when he wrote his own report dated 8 December 1999 (T10). His summary of Mr Wood’s service experiences was consistent with that given by Dr Rose but added that a mate of Mr Wood had picked up an unexploded shell that exploded when he was disassembling it. Mr Wood was hit on the head by a piece of shrapnel but was not injured. He felt distressed by other people’s reaction to the Japanese bombing when they dived into the slit trench. Dr Parkin described Mr Wood’s mood after the war as being a bit carefree. He talked to Mrs Wood and recorded that:
She confirmed the history of moodiness lasting from her recollection from two days to a week. She said he had them about every six weeks. She said he would go off on his own and would not talk. She also said he jumped a lot in his sleep and that he snored and he seemed to snore more when he was uptight. She did describe him as a worrier but not to the extent that would warrant a diagnosis.
31. Dr Parkin considered that Mr Wood appeared to have an early memory disorder and that it might relate to cerebrovascular disease. Dr Parkin concluded:
Differential Diagnosis and Final Diagnosis
This man is somewhat anxious and has poor sleep. However he does not really have the degree of anxiety to warrant a diagnosis of Generalised Anxiety Disorder. He does however have episodic mood disturbances that are really quite significant and have led him to disruptive behaviour over the years.
DSM-IV Criteria
In looking through the DSM-IV it would appear that depressive disorder not otherwise specified would be the best diagnosis. There are research criteria put forward for recurrent brief depressive disorder but these have not yet been validated. In the current draft they require at least one a month for a period of 12 months, but one would have to argue that this man’s severity is such as to warrant consideration of a disorder. It should be stressed that this postulated disorder is for research and is not a formal part of DSM-IV. However depressive disorder not otherwise specified is one of the accepted diagnostic categories.
32. In relation to whether this is war-caused Dr Parkin stated:
It would thus seem that the distress he experienced during his war service has played a part in the development of this disorder even though this disorder did not have its clinical onset until the sixties or seventies. Such a delayed onset is accepted with Post-traumatic Stress Disorder. I therefore believe that there is a reasonable hypothesis linking the stresses that he experienced as part of his service with the onset and recurrent episodes of his mood disorder not otherwise specified.
Dr Landsberger
33. The Department asked Dr J Landsberger, the applicant’s G.P, to produce any clinical notes or other documents relating to treatment of psychiatric conditions. Dr Landsberger’s written response, a short annotation to the Department’s letter of request, was that he did not have any record of Mr Wood ever receiving any psychiatric therapy and had not treated him for any psychiatric illnesses (Exhibit R3).
consideration of issues
34. Mr De Marchi submitted that there was material before the Tribunal that supports the diagnosis of generalised anxiety disorder, and / or depressive disorder not otherwise specified, and he relied upon the opinion of Dr Cole in support of both diagnoses. Mr De Marchi submitted that it was reasonable to find that Mr Wood was suffering from a depressive disorder not otherwise specified, noting that Dr Walton had conceded the possibility of a clinician making such a finding. In relation to the other two conditions, Mr De Marchi noted that the relevant factors in each SoP required the veteran to have suffered a severe psychosocial stressor. The parties informed the Tribunal that the respondent conceded that Mr Wood did experience such a stressor during his period of service. As an alternative to those conditions, Mr De Marchi submitted that the material supported a diagnosis of mixed anxiety and depressive disorder. Since the RMA has not made a determination of a SoP that covers that condition, he submitted that whether there is a reasonable hypothesis connecting the condition with service, was governed by the operation of ss.120(1) and 120(3) of the Act. Accordingly, the main issue for the Tribunal was one of diagnosis, but also connection with service in the case of mixed anxiety and depressive disorder.
35. Mr Rudge submitted for the respondent that on the balance of probabilities Mr Wood does not suffer from a psychiatric condition (Benjamin). Mr Rudge submitted that Dr Walton’s evidence should be preferred. It was more credible because Dr Cole struggled to force the applicant’s symptoms into some sort of diagnostic category. Further, Dr Cole conceded that Mr Wood’s symptomatology did not meet each of the diagnostic criteria for the condition depressive disorder not otherwise specified. Dr Walton felt that the predominant condition was that of depression but that Mr Wood’s depression was not sufficient to amount to a valid clinical entity. Further, Mr Rudge emphasised that clinical onset of symptoms, whether of anxiety or depression, was in the mid 1950s at the earliest. He referred both to the history obtained by Dr Parkin that Mr Wood and his wife believed his condition was significantly affected by worry about his children, and the applicant’s answers in cross-examination that his problems did not start until around 1955.
36. There is a preliminary issue in this matter as there is a dispute as to whether Mr Wood suffers from a psychiatric condition. The Tribunal, therefore, must address the initial question whether Mr Wood suffers from a disease and, if so, what disease: Hill at [61]. In characterising the symptoms, the Tribunal is to:
… identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contracted. It is not a matter of nomenclature or attaching a traditional label to the collection of symptoms. … Once the decision maker has identified, to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved by imposing on the Commission the reverse onus of proof on the criminal standard in accordance with s.120(1) as qualified by s.120(3): Budworth at 292.
37. It is clear from Benjamin that SoPs are not relevant to the question of diagnosis, as the Full Court there noted (at 280):
The primary judge observed that, on all the evidence before the Tribunal, exposure to a traumatic event was the primary criterion required for the diagnosis of post traumatic stress disorder. The Tribunal made its diagnosis by reference to SoP 15 of 1994. His Honour correctly held that to be impermissible, as the scheme of the Act contemplates that SoPs be used to determine the standard of proof. SoPs are not relevant to the question of diagnosis.
Where the Tribunal determines that the symptoms constitute a disease, the next step is to determine whether a SoP is in force in respect of the disease.
38. Both Dr Cole and Dr Walton referred to incidents that had occurred during Mr Wood’s service in Bougainville and to his feelings of being unsettled and depressed after the war. Both noted that, over the years since the war, he told them that he experienced difficulty in concentrating and sleeping, irritability and anxiety in an episodic fashion. This was consistent with the evidence that Mr Wood gave at the hearing, and in so far as poor sleep and some anxiousness are concerned, is supported by the evidence of Dr Parkin. It is not supported by reference to the medical records of his general practitioner Dr Landsberger (Exhibit R3) or Dr Rose’s report.
39. It is not supported because Dr Landsberger chose not to produce his clinical records from which it might have been possible to ascertain whether or not Mr Wood had made complaints about such matters as sleeping difficulties, poor concentration and irritability. As it is, Dr Landsberger responded by informing the Department that he had not treated Mr Wood for a psychiatric illness and that he did not have a record of Mr Wood having been given any psychiatric therapy. It is not supported by Dr Rose’s report written more than two years before those of Dr Cole and Dr Walton. On the basis of what he has written in his report, we are satisfied that Dr Rose specifically asked Mr Wood about nervous problems and Mr Wood was emphatic in his denial of any before his heart attack in 1998.
40. It is somewhat difficult to determine where the truth lies but, we have concluded that, on the balance of probabilities, Mr Wood suffered from anxiety, poor sleep and irritability on an episodic basis. In doing so we prefer the evidence of Dr Cole, Dr Walton and Dr Parkin to that of Dr Rose but, in doing so, note that Dr Rose did not appear to have the advantage of seeing the applicant’s wife. Mrs Wood confirmed what her husband had told Dr Parkin, and that lends weight to our conclusion. Dr Landsberger’s evidence was of no assistance in the matter.
41. The symptoms are one thing but the diagnosis of the condition is another. Dr Parkin, Dr Rose, and Dr Walton were of the opinion that Mr Wood was not suffering from a generalized anxiety disorder and Dr Rose and Dr Walton went so far as to say that he was not suffering from any condition at all, although they recognized that he was suffering from some depression and has suffered symptoms on an episodic basis over the years. Dr Parkin regarded depressive disorder not otherwise specified as the best diagnosis but Dr Cole did not consider that Mr Wood’s condition met the criteria specified in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV) for such a diagnosis. In his report dated 5 March 2002 (Exhibit A3) and his oral evidence, Dr Cole noted that Mr Wood’s recurrent brief depressive episodes did not occur at least monthly, for 12 months. Despite that, he too considered that it was the diagnosis that “best fit” Mr Wood’s condition. It seems to us that we should not prefer the evidence of what is the “best fit” for a condition (and particularly when there is an acknowledgment in that evidence that the diagnosis does not match the diagnostic criteria in DSM-IV) over the contrary evidence. For that reason, we find that Mr Wood is not suffering from a depressive disorder not otherwise specified.
42. Dr Cole considered that Mr Wood does suffer from a generalized anxiety disorder but, in order to reach that diagnosis, he had to form the view that Mr Wood was suffering from a continuous state of anxiety with episodes of depression. His diagnosis was not supported by the other medical practitioners and is not supported by Mr Wood’s evidence. His evidence is of episodic periods of depression and anxiety but not of continuous anxiety. Taking these matters into account, we are satisfied that the weight of evidence favours our finding that Mr Wood does not suffer from a generalized anxiety disorder.
43. As for the alternative diagnosis of Mixed anxiety and depressive disorder, referred to in item F41.2 in the International Statistical Classification of Diseases and Related Health Problems, 10th revision, 1992, (ICD-10) the Tribunal notes that the following appears in ICD-10:
This category should be used when symptoms of anxiety and depression are both present, but neither is clearly predominant, and neither type of symptom is present to the extent that justifies a diagnosis if considered separately. When both anxiety and depressive symptoms are present and severe enough to justify individual diagnoses, both diagnoses should be recorded and this category should not be used. (at p.341)
Dr Cole’s evidence was that he did not favour such a diagnosis as he thought the symptoms of depression and anxiety are severe enough to warrant individual diagnoses. For Dr Walton, such a diagnosis is not simply a matter of finding that a patient has some anxiety and some depression, the patient does not qualify for a diagnosis of either condition, thus the patient has to be diagnosed as suffering from Mixed anxiety and depressive disorder. Dr Walton said that the patient must still cross the diagnostic threshold. Here, he considered that on the balance of probabilities, Mr Wood does not suffer from a valid clinical entity and accordingly such a diagnosis was not appropriate, an opinion that the Tribunal accepts. The Tribunal is not satisfied on balance, that Mr Wood suffers from the condition of Mixed anxiety and depressive disorder.
44. We find, therefore, that Mr Wood is not suffering from any diagnosed psychiatric condition. For the reasons we have given, the decision under review refusing Mr Wood’s claim for disability pension should be affirmed.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member and Associate Professor J.H. Maynard, Member:
Signed: .......................................................................................
AssociateDates of Hearing 30 January 2002
23 October 2002
Date of Decision 15 October 2003
Applicant’s Solicitor Mr D De MarchiRespondent’s Representative Mr K Rudge, Dep’t of Veterans’ Affairs
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