Fallon and Repatriation Commission [2011] AATA 15 (18 January 2011)

Last Updated: 18 January 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 15

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/0342

VETERANS’ APPEALS DIVISION		)
	Re		GREGORY FALLON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Dr I Alexander, Member

Date 18 January 2011

Place Sydney

Decision

The decision under review is affirmed.

..................[sgd]............................
Dr I Alexander
Member

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – eligible defence service – claim in respect to major depressive disorder and alcohol abuse – whether conditions were defence-caused – decision under review affirmed

Veterans’ Entitlements Act 1986 (Cth) s 70, 120, 120B

REASONS FOR DECISION

18 January 2011

Dr I Alexander, Member

INTRODUCTION

1. In this application Mr Fallon seeks review of the Veterans’ Review Board decision of 14 December 2009 to affirm an earlier decision of the Repatriation Commission (the Commission) to reject his claim of 10 September 2008 in respect of incapacity from “major depressive disorder” and “alcohol abuse” and his claim for an increase in disability pension.
2. Mr Fallon served in the Australian Army from 4 January 1972 to 3 January 1975. For the purposes of the Veterans’ Entitlements Act 1986 (the VE Act) his eligible defence service was from 7 December 1972 to 3 January 1975.

STATUTORY FRAMEWORK

3. Section 70 (1) of the VE Act provides that the Commonwealth is liable to pay a pension to a member of the defence forces who is incapacitated from a “defence-caused disease” or a pension to dependants of a member of the defence forces whose death was “defence-caused”.
4. Section 70(5)(d) deems that a disease contracted either before the commencement of defence service or during, but not arising from that service, is defence-caused, if in the opinion of the Commission it was “contributed to in a material degree by, or was aggravated by, any defence service”.
5. Section 120(4) requires that the Commission should decide the matter to its reasonable satisfaction.
6. If the claim is one in respect to which there is a Statement of Principles (SoP) in force section 120B(3) determines that the Commission can only be reasonably satisfied if:

(a) the material before the Commission raises a connection between the person’s disease and some particular service rendered by that person; and

(b) the SoP in force upholds that the disease is, on the balance of probabilities, connected with that service.

7. In this application there are two SoPs in force namely:
   • Instrument No. 28 of 2008 (as amended by Instrument No. 41 of 2010) – SoP concerning Depressive Disorder; and
   • Instrument No. 2 of 2009 – SoP concerning Alcohol Dependence and Alcohol Abuse.

ISSUES

8. In my view, the case presented on behalf of Mr Fallon is somewhat confused and appears to be based on a hypothesis that because of his family history and difficult childhood experiences he suffered a “vulnerability to depression”. It is contended that because of this vulnerability, which was present during his defence service, Mr Fallon suffered a “major depressive disorder”.
9. It is also contended that Mr Fallon’s depressive disorder was made clinically worse because of “chronic pain” resulting from his accepted defence-caused disabilities of “lumbar spondylosis with facet joint arthropathy” and “osteoarthrosis” of his hips and knees.
10. Mr Fallon relies on factor 6(k) in the SoP concerning Depressive Disorder which, in accordance with paragraph 5, requires that “having chronic pain of at least six months duration at the time of the clinical worsening of depressive disorder” must exist before it can be said that, on the balance of probabilities, his depressive disorder can be connected to his eligible defence service.
11. Relevantly, paragraph 7 of the SoP states that “Paragraphs 6(d) to 6(t) apply only to material contribution to, or aggravation of, depressive disorder where the person’s depressive disorder was suffered or contracted before or during (but not arising out of) the person’s relevant service”.
12. The Commission does not dispute that Mr Fallon suffers from a depressive disorder, but contends that the condition had its clinical onset at some time after he was discharged from the Army and therefore was not present during his defence service. This would mean that factor 6(k) could not be satisfied and that his depressive disorder was not connected with defence service.
13. Therefore, the most relevant issue to determine is whether Mr Fallon suffered from a depressive disorder before or during his eligible defence service.
14. If so, it would then be necessary to determine whether there has been a “clinical worsening” of the depressive disorder and whether Mr Fallon suffered from “chronic pain”, as defined in the SoP, for at least six months prior to the clinical worsening.
15. Mr Fallon also contends that at the time of his claim he suffered incapacity from “alcohol abuse” and that this condition was defence-caused.
16. He relies on factor 6(a) in the SoP concerning Alcohol Dependence and Alcohol Abuse which requires, in accordance with paragraph 5, that “having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse” must exist before it can be said that, on the balance of probabilities, his alcohol abuse can be connected to his defence service.
17. Mr Fallon presumes that his major depressive disorder is the “clinically significant psychiatric condition” and in order for his application to succeed he relies on a favourable finding by the Administrative Appeals Tribunal (the Tribunal) that his major depressive disorder is connected to his defence service.
18. The Commission accepts that Mr Fallon has a past history of problems with excess alcohol intake but contends that, in the period of assessment for his claim, he did not suffer from “alcohol abuse’’ as defined in the relevant SoP.
19. Furthermore, the Commission contends that, even if Mr Fallon did suffer alcohol abuse, factor 6(a) of the SoP cannot be satisfied because his depressive disorder is not connected with his defence service.
20. If the Tribunal were to find that the depressive disorder was connected with Mr Fallon’s defence service then it would be necessary to determine whether he did in fact suffer “alcohol abuse” during his assessment period and, if so, to establish the time of clinical onset.

DID MR FALLON SUFFER FROM “DEPRESSIVE DISORDER” BEFORE OR DURING HIS ELIGIBLE DEFENCE SERVICE?

21. In his oral evidence Mr Fallon described his unhappy childhood experiences. His parents had separated when he was about seven years of age and his father, a WWII veteran, who had significant alcohol-related and mental problems, died prematurely when Mr Fallon was 12 years old.
22. At the age of 14 years Mr Fallon left home because of difficulties with his mother’s new partner, but successfully found both accommodation and work. After two and a half years as an apprentice carpenter he moved from one labouring job to another until he joined the Australian Army in 1972 at the age of 19 years.
23. Mr Fallon claimed that he excelled during his first battalion assignment as an “assault pioneer” because of his previous country work experience. However, he said that he “didn’t want to become a career soldier” and when he refused promotion he was transferred to a battalion based in Singapore.
24. Mr Fallon said that during the year he was based in Singapore eight months were spent patrolling Malaysian jungles. During this time he added that there was “no live contact” with any enemies and that he saw no casualties, but that he was always concerned about unknown people in the jungle as well as animals, such as tigers and snakes. Also, he briefly described an incident with a “honey bear”.
25. Mr Fallon indicated that while in the Army his leisure time was taken up by drinking beer because he was not “a good mixer”, and he felt that he didn’t fit in and would avoid organised social functions because of anxiety. Relevantly, he made no reference to mood disturbance or feelings of depression. He added that his off-duty drinking did not affect his work and did not result in any disciplinary issues and described himself as “a very good soldier.” Also he said that, as far as he was aware, he did not seek any medical treatment during his service.
26. After leaving the Army Mr Fallon returned to Cootamundra and was employed with the same building company for the next 15 years. During this time beer drinking started to interfere with his interpersonal relationships and he said that he “withdrew and started to spend a lot of time on my own, drinking in sheds, doing fishing on my own, that type of thing”.
27. During cross examination Mr Fallon explained that apart from missing occasional days because of a hangover his alcohol drinking did not interfere with his work.
28. Mr Fallon also agreed that he started to feel depressed after coming out of the Army, and that he thought drinking would make his “blues” go away.
29. Relevantly, in a report dated 12 April 2007 Dr Walker, consultant psychiatrist, noted that Mr Fallon had become “depressed after leaving the Army in 1975” and since then “his episodes of depression were becoming more regular”.
30. Dr Walker also noted that Mr Fallon met his wife in Singapore during his army service and married in 1974. This would appear to be somewhat inconsistent with Mr Fallon’s oral evidence about his social life during his time in Singapore.
31. Dr Matias, Mr Fallon’s treating psychiatrist, provided a report dated 1 October 2008 and also gave oral evidence.
32. In her report she noted that the first consultation with Mr Fallon was on 24 July 2008 and concluded that he had major depressive disorder “which he relates as stemming from his chronic pain syndrome” and that he “also has alcohol abuse disorder again stemming from his pain syndrome as well as his major depressive disorder as a way of self-medicating”.
33. Dr Matias also noted that Mr Fallon had a “genetic vulnerability of Depression in his father, and secondary to early childhood losses and emotionally deprived childhood”.
34. In her report Dr Matias does not address the question of the clinical onset of Mr Fallon’s depressive disorder.
35. In the course of her oral evidence it became clear to the Tribunal that Dr Matias did not have an accurate understanding of many aspects of Mr Fallon’s history and that her assessment of Mr Fallon in respect of his depressive disorder focussed mainly on recent circumstances.
36. During cross examination Dr Matias speculated that Mr Fallon had a diagnosable depressive disorder after he came out of the Army because “he says that he would binge drink when he came out of the Army”.

CONSIDERATION

37. Although there is no dispute that Mr Fallon suffers from a major depressive disorder the time of clinical onset of this condition is unclear.
38. I found Mr Fallon’s evidence on this issue somewhat vague and unconvincing. The medical evidence was also relatively unhelpful.
39. Nevertheless, I am reasonably satisfied that the evidence before the Tribunal does not support a conclusion that Mr Fallon suffered from a depressive disorder before or during his eligible defence service.
40. At best the evidence tends to support a conclusion that the clinical onset of Mr Fallon’s depressive disorder occurred sometime after he left the Army.
41. Therefore, factor 6(k) in the SoP concerning Depressive Disorder cannot be satisfied which means that Mr Fallon’s “major depressive disorder” is not connected with his eligible defence service.
42. In respect of Mr Fallon’s claim for incapacity because of “alcohol abuse” I note that there is evidence before the Tribunal that questions whether he, in fact, suffered from this condition during the period of assessment of his claim.
43. Nevertheless, for present purposes I will assume that he did suffer from alcohol abuse at the relevant time.
44. Mr Fallon relies on factor 6(a) in the SoP concerning Alcohol Dependence and Alcohol Abuse in claiming this condition is connected to his eligible defence service.
45. In order to satisfy factor 6(a) Mr Fallon must have a “clinically significant psychiatric condition at the time of the clinical onset” of his alcohol abuse and that psychiatric condition must be connected to his eligible defence service.
46. The only relevant psychiatric condition suffered by Mr Fallon is his “major depressive disorder” which I have already decided is not defence-caused therefore factor 6(a) cannot be satisfied.
47. Accordingly, I find that Mr Fallon’s claimed alcohol abuse is not connected to his eligible defence service.

DECISION

48. For the reasons set out above, I find that Mr Fallon’s claimed conditions of “Major Depressive Disorder” and “Alcohol Abuse” are not connected with his eligible defence service. The decision under review is affirmed.
    

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

Signed: ............[sgd]....................................................................

Associate

Date of Hearing 8 December 2010

Date of Decision 18 January 2011

Appearance for the Applicant Mr B Winship

Appearance for the Respondent Mr T O’Reilly