Booth and Repatriation Commission [2009] AATA 129 (2 March 2009)

Last Updated: 3 March 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 129

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/2811

VETERANS' APPEALS DIVISION		)
	Re		JOHN BOOTH

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Dr K S Levy, RFD, Senior Member Dr J B Morley, RFD, Member

Date 2 March 2009

Place Brisbane

Decision

The Tribunal affirms the decision under review.

.................[Sgd].............................
Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – Whether Generalised Anxiety Condition was war-caused or defence-caused – Whether Applicant meets Statement of Principles – Decision affirmed.

Veterans’ Entitlements Act 1986 (Cth), ss 9, 70, 120(1), 120(3), 120A, 196B(2)

Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622

Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Mines v Repatriation Commission [2004] FCA 1331; (2004) 86 ALD 62

Re Jenkin and Repatriation Commission (1997) 47 ALD 721

Repatriation Commission v Deledio [1998] FCA 391; [1998] 83 FCR 82

Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321

White v Repatriation Commission [2004] FCA 633

REASONS FOR DECISION

2 March 2009	Dr K S Levy, RFD, Senior Member Dr J B Morley, RFD, Member
INTRODUCTION

1. On 22 August 2007, Mr Booth made application under the Veterans’ Entitlements Act 1986 (“the Act”) for recognition of the condition of post traumatic stress disorder (“PTSD”), on the basis of anxiety and depression. On 24 August 2007, the Repatriation Commission determined that the correct diagnosis for the condition claimed is Generalised Anxiety Disorder. It further determined that this condition was not war-caused or defence-caused. That decision was reviewed by the Veteran’s Review Board, but rejected on 27 May 2008. Mr Booth now makes application to this Tribunal.

ISSUES

2. The parties agree that the correct diagnosis is Generalised Anxiety Disorder. However, they disagree about whether its origin is due to Mr Booth’s defence service or operational service. The issue for determination is whether Mr Booth’s experiences during operational service satisfy the requirements of the relevant Statement of Principles.

BACKGROUND

3. Mr Booth enlisted in the Royal Australian Air Force (“RAAF”) on 7 June 1961 and was discharged on 22 September 1981, a period of a little over 20 years. He was employed in the RAAF as a cook. After discharge, the Applicant was employed by Queensland Health for approximately 22 years; it appears that he has since retired from that organisation. He was 17 years of age when he enlisted and, from the age of 18, served on operational service when he was posted in 1962 to the RAAF base at Butterworth, Malaysia. He was attached to the Base Squadron at Ubon, Thailand, for the first 3 months of that posting and then served at Butterworth.
4. Despite Mr Booth being employed as a cook, the first three months of his initial posting was spent serving as a steward on flights between Butterworth, Cambodia and Thailand. These flights generally hosted ambassadors from other countries, such as Laos. Mr Booth indicated some level of anxiety about Chinese radar being able to detect aircraft. The Applicant’s claim is based on an incident that occurred during that first three month period. One night, after being awoken, he was required to get his rifle and tin helmet and get into a trench. He understood that American defence personnel had detected activity on a radar. He was in the trench for some four hours, after which he was told to stand down as the detected activity was a “non event”. He stated that while he was in the trenches, the men were talking amongst themselves and did not keep silence or any tactical discipline. We note that the Applicant then served at Butterworth and returned to Butterworth/Singapore for a further tour of duty of almost two years.
5. The incident of being in a trench forms the basis of the claim. The Applicant asserts this incident is the origin of his current condition, Generalised Anxiety Disorder.
6. Psychiatric evidence was provided by Dr Cook, who has provided an expert opinion that Mr Booth’s family background indicates a general predisposition to nervousness and anxiety. He conducted pathology tests, which revealed no other physiological abnormality which would explain the Applicant’s condition. He regarded the symptoms as fairly straight forward and a case of Generalised Anxiety Disorder as defined by the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”). However, he believes that the account provided by Mr Booth points to an onset of clinical anxiety about 10 to 15 years prior to his report, which was written on 23 May 2006. According to Mr Booth’s account, two of his sons died in the period coinciding with the onset of clinical symptoms of anxiety as opined by Dr Cook. In addition, two of his brothers died in the preceding couple of years. Dr Cook was of the view that these incidents, together with the general predisposition, were the significant factors in the development of the Applicant’s Generalised Anxiety Disorder.

DIAGNOSIS

7. We heard the Applicant’s account of his service and family history. None of the facts presented by the Applicant were contradicted by Dr Cook. The only real issue is the timing and magnitude of the condition which Mr Booth suffers. His treating psychiatrist since 2007, Dr Slack, thought that based on the account provided to him, the anxiety condition first became evident whilst the Applicant was serving overseas with the RAAF. He said Mr Booth then became “nervy” and that he could have had Generalised Anxiety Disorder, as defined by DSM-IV. However, in Dr Cook’s opinion, the incident in Ubon “...played a part, albeit quite small, in the development of this condition”[1]. Dr Cook also opines that, “the events in Mr Booth’s life which have been most potent in producing this condition have been the death of his twin boys and the death of his two brothers. However, the events which occurred in his RAAF career have had a small part in contributing to this condition”[2].
8. We have taken into account that the Applicant’s wife told Dr Cook that Mr Booth had always been nervous for as long as she had known him (approximately 20 years). Dr Cook, however, conceded in cross-examination that he had not specifically asked Mr Booth when the condition commenced, but rather inferred it from the state of facts provided to him by Mr Booth. The Tribunal asked Dr Cook if it was likely that the Ubon incident, taking account of the Applicant’s age and experience at the time, resulted in a psychiatric condition that the Applicant now suffers from. Dr Cook responded that it would be “highly unlikely”.
9. In determining a diagnosis, the Tribunal must take into account the description of the psychiatric symptoms described by Mr Booth, which was sufficient for a doctor to determine that the disease was present at a particular time[3].
10. We have taken into account the evidence of the psychiatrist in the context of the information provided by the Applicant. Expert evidence must satisfy the Tribunal as to the reasons why such opinion was formed[4]. Dr Cook considered each of the criterion under DSM-IV and thought that in relation to criterion A, the incident in Ubon was stressful mainly because the Applicant did not know what was going on at the time and that, more than anything else, accounted for the anxiety of the incident. He concluded that the Ubon incident played only a small part in the constellation of Mr Booth’s life experiences that contribute to the Generalised Anxiety Disorder. In oral evidence, Dr Cook said the death of the Applicant’s half brothers and his two sons of triplets “rocked this man”. Dr Cook has further stated that the Applicant has a familial tendency, or genetic predisposition, to anxiety. We are satisfied that Dr Cook’s account is an impressive analysis based on the evidence. We accept that the main triggers for the Applicant’s present condition occurred in the period 1991 to 1996. We determine, therefore, that clinical onset of Generalised Anxiety Disorder occurred in 1995, which coincides with the timing of the in utero death of his twin sons.

IS THIS CONDITION CAUSED BY OPERATIONAL SERVICE?

STANDARD OF PROOF

11. The standard of proof needed to demonstrate a causal relationship between the condition of Generalised Anxiety Disorder and the Applicant’s operational service is set out in ss 120 (1) and (3) of the Act. These provisions provide that the claim will be satisfied unless it can be shown beyond reasonable doubt that there is no ground for making such a finding. They also provide that the Tribunal must make a determination in favour of the Applicant only after considering all the evidence, and that such a finding must be made unless the evidence does not raise a reasonable hypothesis which connects the condition with the Applicant’s operational service.
12. In addition, if the claim is made after the 1 June 1994, s 120A of the Act applies. It requires any reasonable hypothesis to be assessed according to Statement of Principles (SoPs) issued by the Repatriation Medical Authority. The relevant SoPs are those in existence at the date of review by this Tribunal. However, if the finding is unfavourable to the Applicant and there was an earlier SoP in existence at the time of the original decision, and that earlier SoP would enable a more generous view of the facts to be taken, then that SoP should be applied in reaching a final determination[5].
13. The relevant SoPs are as follows:
    • Instrument No 1 of 2000 – Generalised Anxiety Disorder; and
    • Instrument No 101 of 2007 – Anxiety Disorder.
      
14. The relevant SoPs have legislative force[6].
15. The substantive assessment is to determine whether the Applicant’s Generalised Anxiety Disorder is war-caused or defence-caused within the meaning of s 9 or s 70 of the Act. This is achieved by examining the four stage process set out in Repatriation Commission v Deledio[7].
16. Step one of that process requires that we consider all the material and decide whether it points to a hypothesis connecting the condition with circumstances of the Applicant’s service. The hypothesis submitted is that Mr Booth suffers from Generalised Anxiety Disorder as a result of stressful incidents during his period of operational service and his age and experience.
17. Taking into account all of the circumstances set out before us, we are prepared to accept that such an hypothesis can be raised.
18. Step two of the Deledio process requires the identification of any relevant SoPs under s 196B(2). The relevant SoPs are set out above: Instrument 1 of 2000 and Instrument 101 of 2007.
19. Step three of the Deledio process requires us to determine whether the hypothesis raised is a reasonable one. In other words, we must determine whether the hypothesis raised aligns with, or is consistent with, the template set out in the SoPs. Under SoP 101 of 2007, before a hypothesis can be deemed to be a reasonable hypothesis, an Applicant must experience a category 1A, category 1B or category 2 stressor. Mr Harding, counsel for the Applicant, conceded that there is nothing in the category 1B or category 2 definitions which are relevant to this case. Therefore, the experiences of Mr Booth must be shown to fit within the definition of a category 1A stressor. This is defined as:

“(a) experiencing a life threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured”.

20. We have considered the event in Ubon, when the Applicant was woken and had to get into a trench with a rifle and tin helmet and was given a box of live ammunition. He was also required to be a flight steward, during which time he flew over Cambodia, Thailand, Indonesia and Laos in a RAAF DC-3 aircraft. He had concerns about “warlord” guerrillas in Cambodia who might try to shot down the DC-3. On an occasion when he was required to fly from Singapore to Indonesia, one of the aircraft engines ceased operating at the time of landing. We agree that these incidents would heighten the anxiety of most people, particularly most people of the Applicant’s then age, who have a tendency to be nervous. However, our task is to determine whether the circumstances described equate to one or more of the “severe traumatic events” described in the definition of “a category 1A stressor”. Having considered the events described, we do not believe that they (either individually or taken together) fit within this definition.
21. We must therefore consider, in the alternative, whether the Applicant satisfies the requirements of SoP No 1 of 2000 - Generalised Anxiety Disorder. The Applicant must be able to satisfy factor 5(a)(ii), ie that he experienced “a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder”.
22. A “severe psychosocial stressor” is defined in clause 8 of SoP No 1 of 2000 as meaning “...an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems”. That “severe psychosocial stressor” factor was considered in White v Repatriation Commission[8]. The Court referred to the need for an identifiable occurrence which would evoke feelings in an Applicant of substantial distress, objectively and subjectively. We accept the submission that there is an identifiable occurrence. In relation to whether the Applicant has experienced substantial distress, it was put to the Tribunal that he was not a seasoned member of the defence force and that the feelings evoked in him are ones which might be raised in a person of psychiatric vulnerability (alluded to in the evidence of Dr Cook and Dr Slack).
23. Having looked at the examples in SoP No 1 of 2000 of a “severe psychosocial stressor”, we do not believe that the events presented reach their level of intensity. We are therefore not satisfied that a reasonable hypothesis has been raised. As a confirmatory measure, we have also taken account SoP No 101 of 2007, which requires the incident linking the disease to service to have occurred within five years of clinical onset (or two years in the case SoP No 1 of 2000). In this case, the most sympathetic assessment will be made, under SoP No 101 of 2007, that is, within five years before clinical onset of the Anxiety Disorder. We determined earlier that the date of onset was 1995. Five years earlier than 1995 is 1990. As the original incident occurred in 1962, the triggering events occurred 28 years earlier than the earliest time to be regarded as satisfying SoP No 101 of 2007.
24. In the circumstances, we find step three of the Deledio process is not satisfied. It is therefore unnecessary to consider step four. On the basis of the evidence presented and the legal requirements, the claim must fail.
25. The decision under review is affirmed.
    

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, RFD, Senior Member and Dr J B Morley, RFD, Member

Signed: ...........................[Sgd].....................................................

Matyas Kochardy, Research Associate

Dates of Hearing 10 December 2008 and 21 January 2009

Date of Decision 2 March 2009

Counsel for the Applicant Mr Anthony Harding

Solicitor for the Applicant Mr John Cockburn

For the Respondent Mr Terry Thrupp, Departmental Advocate

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[1] Folio 32; T Documents.
[2] Folio 33; T Documents.
[3] Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622, Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331, Mines v Repatriation Commission (2004) 86 ALD 62.
[4] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
[5] Repatriation Commission v Gorton (2001) 110 FCR 321.
[6] Re Jenkin and Repatriation Commission (1997) 47 ALD 721
[7] [1998] 83 FCR 82.
[8] [2004] FCA 633