Smith and Repatriation Commission [2002] AATA 829 (23 September 2002)

Last Updated: 24 October 2002

DECISION AND REASONS FOR DECISION [2002] AATA 829

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/565

VETERANS' APPEALS DIVISION )

Re GREGORY JAMES SMITH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date 23 September 2002

Place Sydney

Decision The tribunal affirms the decision under review.

[SGD] M J SASSELLA

Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS - Disability Pension - tension state - whether veteran claimed for post-traumatic stress disorder - whether veteran qualified for special rate Disability Pension - veteran's degree of impairment insufficient for special or intermediate rate Disability Pension

Veterans' Entitlements Act 1988 ss 20(1), 21(1), 21A(1), 23(1)(a), 24(1)(aa), (aab), (a), (d) 29, 120(1), (3), (4)

Benjamin v Repatriation Commission (2001) 34 AAR 270

Budworth v Repatriation Commission (2001) 63 ALD 402

Cooke, Repatriation Commission v (1998) 90 FCR 307

Smith, Repatriation Commission v (1987) 74 ALR 537

REASONS FOR DECISION

23 September 2002 Mr M J Sassella, Senior Member

THE APPLICATION

1. This is an application by Gregory James Smith ("the applicant") for review by the Administrative Appeals Tribunal ("the tribunal") of a decision of the Veterans' Review Board ("the VRB") dated 7 March 2001 (T11) which affirmed a decision of the Repatriation Commission ("the respondent") dated 18 October 2000 (T8) to increase the applicant's rate of Disability Pension to 60% of the general rate.

THE HEARING

2. The tribunal convened a hearing in this matter in Newcastle on 5 March 2002. Mr B Winship of Rockliffs Solicitors & Attorneys represented the applicant and Mr S Modder from the Department of Veterans' Affairs ("DVA") Advocacy Service represented the respondent. The tribunal heard oral evidence from the applicant and his wife, Narelle Frances Smith. The tribunal took into evidence the following documents:

* Exhibit TD1 - Section 37 Statement and associated documents (exhibits T1 - T12) provided by the respondent.

* Exhibit TD2 - Supplementary Section 37 Statement and associated documents (exhibits T13 - T15) provided by the respondent.

* Exhibit A1 - Applicant's statement of facts and contentions, 28 February 2002.

* Exhibit A2 - Report by Dr L G Lambeth, psychiatrist, 18 September 2001.

* Exhibit A3 - Statutory declaration of Jeffrey Wayne Taylor, 4 April 2001.

* Exhibit A4 - Statutory declaration of Leslie Peter Druitt, 8 March 2001.

* Exhibit R1 - Respondent's statement of facts and contentions, 13 February 2002.

* Exhibit R2 - Report by J M Church of Writeway Research Service, 5 November 2001.

* Exhibit R3 - Report by Dr G Vickery, psychiatrist, 16 October 2001.

* Exhibit R4 - Report by Dr Vickery, 14 February 2002.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

3. The tribunal makes the following uncontroversial findings.

* The applicant was born on 14 February 1948 and was aged 52 when he lodged his application for an increase in pension.

* The applicant served in the army and rendered operational service from 8 January 1968 to 21 January 1969 (T2A).

* The applicant lodged a valid application on 18 February 2000 (T3).

* The date of effect of any decision favourable to the applicant as to accepted disabilities would be 18 November 1999 (s 20(1) of the Veterans' Entitlements Act 1986 ("the Act")). The date of effect of any increase in pension unrelated to the recognition of a new disability as war-caused would be 18 February 2000 (s 21(1) of the Act).

* The standard of proof in relation to whether Mr Smith suffers from post-traumatic stress disorder is the reasonable satisfaction standard (s 120(4) of the Act). This standard equates to acceptance on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537, 547).

* The question of whether any post-traumatic stress disorder suffered by the applicant is a war-caused disease is resolved according to the reasonable hypothesis standard (s 120(1), (3) of the Act).

* The standard in relation to eligibility for special rate is that of reasonable satisfaction (s 120(4) of the Act).

* The Statement of Principles ("SoP") relevant to the determination of any post-traumatic stress disorder as a war-caused disease is SoP 3/99 concerning post-traumatic stress disorder, as amended by 54/99.

* Mr Smith's accepted disabilities are tension state (accepted from an unknown date) and psoriasis (accepted on 10 June 1993) (ex TD1/1).

4. There were various issues at play in this matter and they will be dealt with in the following order:

(a) Was there a valid claim for post-traumatic stress disorder as a war-caused disease?

(b) If there was a valid claim for post-traumatic stress disorder as a war-caused disease, does Mr Smith suffer from post-traumatic stress disorder or some other psychiatric condition?

(c) If Mr Smith suffers from post-traumatic stress disorder or another psychiatric condition, was it war-caused?

(d) Does Mr Smith qualify for a special rate or intermediate rate pension?

was there a valid claim for post-traumatic stress disorder as a war-caused disease?

5. Mr Smith did not clearly signify that he was making any claim for post-traumatic stress disorder. On 18 February 2000 he applied for an increase in his Disability Pension on the basis that his "anxiety state" and skin rash had deteriorated greatly (T3).

6. On 25 August 2000 he applied for an increase in his Disability Pension on the basis that his disabilities had deteriorated to such an extent that on 7 April 2000 he had to leave his employment of 18 years "due to my post-traumatic stress disorder" and because his work was dangerous in that it involved working with explosives and he risked harming himself and others (T6). There was an option box to check if the veteran completing the form was making a "claim for Disability Pension ... for disabilities that have not yet been accepted as service related" (T6/28). Mr Smith did not tick that option. There was provision in the form for identification of any new disabilities he was claiming as war or defence caused (T6/30). This part of the form invited identification of the disability or symptom, a statement as to why the veteran believed his or her service caused, contributed to or aggravated the disability, identification of the date of first awareness of the disability or the aggravation, and there was provision for comments by a doctor. Mr Smith left this part of the claim form blank.

7. The tribunal notes that Mr Smith's accepted psychiatric disability is tension state. In his application for an increase in February 2000 he referred to it as "anxiety state". The tribunal considers that the reference to "PTSD" in the application dated 25 August 2000 was meant as no more than a reference to Mr Smith's psychiatric condition, the accepted designation of which he seemed unaware. The tribunal finds, therefore, that there has been no claim for a new disability of post-traumatic stress disorder.

8. The tribunal would comment that it does not regard this finding as problematic for Mr Smith. Mr Smith has an accepted psychiatric disease. The respondent does not question that. The label given that disease is not currently used in the psychiatric profession, at least it does not rate an entry in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4^th ed, 1995), commonly referred to as DSM-IV. However, as was emphasised in the Budworth case (footnote 2 above), a veteran may nevertheless suffer from an accepted disability even where diagnosis is problematic. At page 483 in paragraph 19 of its judgment the court said:

"The expression 'as claimed' in s 19(7) to which Whitlam J drew attention in the passage from Benjamin which we have just cited, qualifies the whole clause to which is attached, namely, 'that the veteran suffered the injury or contracted the disease'. This means, we consider, that the decision-maker has 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 medical label to the collection of symptoms. That, as the conflicting expert psychiatric evidence of Dr Knox and Dr Dent on the one hand and Dr Spragg on the other, shows in relation to the label 'post-traumatic stress disorder', may turn on questions of causation or aetiology. 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)."

9. The tribunal then is less concerned with the nomenclature of Mr Smith's war-caused psychiatric disease than with its effect on his capacity to function and live a normal life. In that respect a decision-maker, under s 21A(1) of the Act must assess a degree of incapacity by reference to the approved Guide to the Assessment of Rates of Veterans' Pensions, commonly known as "GARP", a document for which s 29 of the Act provides. Chapter four of GARP deals with the emotional and behavioural effects of a veteran's accepted disabilities. Mr Smith's degree of emotional and behavioural incapacity must be assessed by reference to that chapter regardless of whether his disease is described as tension state, anxiety state, post-traumatic stress disorder or anything else.

if there was a valid claim for post-traumatic stress disorder as a war-caused disease, does mr smith suffer from post-traumatic stress disorder or some other psychiatric condition?

10. The tribunal has found that there was no valid claim for a new disability in the form of post-traumatic stress disorder. However, Mr Smith does suffer from a psychiatric condition referred to as tension state and that is a war-caused disease.

if mr smith suffers from post-traumatic stress disorder or another psychiatric condition, was it war-caused?

11. This was answered in relation to the previous question.

does mr smith qualify for a special rate or intermediate rate pension?

12. Consideration will be given to the more generous special rate in the first instance as it is useful to consider intermediate rate only if he fails in his quest for special rate.

13. The tribunal finds that Mr Smith satisfies a number of the criteria for special rate set out in s 24 of the Act:

(a) He has applied twice for an increase in his rate (s 24(1)(aa) of the Act).

(b) He had not turned 65 when he made those applications. He was aged 52 (s 24(1)(aab) of the Act).

(c) He is not in receipt of temporary special rate under s 25 of the Act (s 24(1)(d) of the Act).

14. The tribunal finds that, at present, Mr Smith does not satisfy s 24(1)(a) of the Act. In order to remedy that problem it is necessary that the tribunal finds Mr Smith to have a degree of incapacity of at least 70%. At present his degree of incapacity is only 60%. This is made up of 20 GARP points for emotional and behavioural effects, 5 points for skin disorders and 5 points for disfigurement and social impairment. The lifestyle effects rating was 3 (T8).

15. There has been no challenge to the impairment ratings for skin disorders and disfigurement, nor any challenge regarding lifestyle ratings, probably because they agree with the recommendations of treating psychiatrist, Dr Pohlen (T15). The tribunal can see no reason to disturb these.

16. So far as the impairment ratings are concerned, Dr Pohlen's views (T15) would result in a degree of impairment of 60%. Dr L Lambeth, another psychiatrist, saw Mr Smith and reported on 18 September 2001 (ex A2) to the effect that Mr Smith's degree of impairment would be 80%. Dr G Vickery, another psychiatrist, reported on 16 October 2001 (ex R3) and his conclusions would lead to a degree of impairment of only 50%.

17. Dr Vickery (ex R4) commented on Dr Lambeth's report and his ratings and, in the tribunal's view, Dr Vickery was justified in suggesting that Dr Lambeth's ratings were inflated. Dr Lambeth wrote on 18 September 2001 and Dr Vickery on 16 October 2001, less than a month later, so their respective findings should have been in close accord. However, Dr Vickery noted that Mr Smith had given Dr Lambeth a history of alcohol consumption double that he told Dr Vickery. Dr Lambeth accepted that Mr Smith was unable to handle the work at Orica, yet he stayed there for almost 20 years, suggesting that it was unlikely that he could not handle the work. Dr Lambeth accepted that Mr and Mrs Smith had marital arguments with Mrs Smith threatening separation, however Mr Smith told Dr Vickery that his marital relationship was satisfying and stable. This was thought to reflect the positive benefits of SSRI medication taken for Mr Smith's obsessional personality traits.

18. Unfortunately the tribunal was offered no submissions from the advocates on this point except for the respondent's statement of facts and contentions (ex R1) in which the respondent said that the tribunal should accept Dr Vickery's views and that Mr Smith had overstated his symptoms to Drs Pohlen and Lambeth.

19. From the oral evidence of Mr and Mrs Smith, from the medical reports, and from Mr Smith's lifestyle questionnaire (T5), the tribunal notes the following as regards the emotional and behavioural effects on Mr Smith arising from his tension state.

* GARP table 4.1: Dr Rogers (T4), Mr Smith's general practitioner, saw a rating of 6 as valid in relation to "subjective distress". This was the conclusion of the Repatriation Commission too (T7). Dr Vickery rated Mr Smith as 2 (ex R3) and Dr Lambeth opted for 15. Dr Rogers' overall ratings appeared moderate and were based on consultations stretching back to at least 1983. Given that they agreed with the respondent's assessment the tribunal accepts that 6 is the appropriate rating. This reflects frequent symptoms causing moderate distress.

* GARP table 4.2: The Repatriation Commission was relatively generous here. It awarded a rating of 6. Dr Rogers assessed a 3. Dr Vickery opted for 2. Mr Smith's self-assessment at T5/26 would equate to 3. The tribunal assesses 6 as the appropriate rating, given its own observations of Mr Smith and that the respondent was prepared to accept that. This means that distress is apparent.

* GARP table 4.3: There was little variation here. Mr Smith and Dr Vickery opted for 2. Dr Lambeth and the respondent opted for 3. The tribunal assesses a 3 rating in accordance with the views of the respondent. Thus, for functional effects, it is considered that Mr Smith suffers moderate interference with functions in everyday situations.

* GARP table 4.4: Dr Vickery and Mr Smith assessed a 2 rating. The respondent opted for a score of 1. This criterion relates to occupation. Mr Smith ceased work on 7 April 2000 (T6) so this is difficult to apply. The tribunal would assess Mr Smith at 2 in accordance with Dr Vickery's views. This equates to short periods of absence from work.

* Table 4.5: Dr Rogers assessed a 2 because of Mr Smith's discord with his children who have since left home. There was no hint in Mrs Smith's evidence of any significant marital discord. Dr Vickery assessed a 1 for this criterion. The respondent assessed 2. Mr Smith's self-assessment would be 3. The tribunal would see a rating of 2 as appropriate on the totality of the evidence. This equates to frequent discord with family members.

* GARP table 4.6: Drs Rogers and Vickery and the respondent see a rating of 3 as appropriate. Mr Smith self-assessed at 5. The tribunal finds that a rating of 3 is appropriate in accordance with the views of the respondent and the general practitioner. Thus, for social interaction, there has been a significant reduction in social interaction.

* GARP table 4.7: As regards leisure activities Mr Smith self-assessed at 5. Dr Vickery assessed 2. Dr Lambeth assessed 3. The respondent assessed 1. The tribunal considers that Dr Vickery was rigorous in his assessment and he considered that the rating should be higher than the respondent had allowed. The tribunal has already explained why it is not inclined to adopt Dr Lambert's views. The tribunal therefore assesses a 2 for table 4.7, "some reduction in recreational activities".

* GARP table 4.8: Dr Vickery and the respondent assessed a 2 rating on the basis that he was having beneficial psychiatric medication. The tribunal adopts the 2 rating.

20. These ratings produce an overall rating of 20 in accordance with the method statement in GARP chapter 4. This is the same result as the respondent opted for in the primary decision which was affirmed by the VRB. The tribunal therefore finds that Mr Smith's GARP impairment rating is properly 60 points. This equates to a degree of incapacity of 60% and is insufficient to satisfy the criteria for special rate or, for that matter, intermediate rate (s 23(1)(a) of the Act).

CONCLUSION

21. The tribunal has found that Mr Smith qualifies for a Disability Pension payable at 60% of the general rate, as did the respondent and the VRB.

DECISION

22. The tribunal affirms the decision under review.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member

Signed: .....................................................................................

Associate

Date of Hearing 5 March 2002

Date of Decision 23 September 2002

Counsel for the applicant Mr B Winship

Solicitor for the applicant Rockliffs Solicitors & Attorneys

Counsel for the respondent Mr S Modder, DVA Advocacy Service

Solicitor for the respondent Mr J Marsh, DVA