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Hoath and Repatriation Commission [2013] AATA 799 (12 November 2013)

Last Updated: 13 November 2013

[2013] AATA 799

Division
GENERAL ADMINISTRATIVE DIVISION
File Number(s)
2011/5149
Re
Linda Hoath

APPLICANT
And
Repatriation Commission

RESPONDENT

DECISION

Tribunal
Senior Member A K Britton
Date
12 November 2013
Place
Sydney

The Decision under review is affirmed.

..............................[SGD]..........................................

CATCHWORDS

VETERANS’ AFFAIRS — Widows’ pension — Where hypothesis must be upheld by more than one Statement of Principles — Where the identified hypothesis relies on a number of sub-hypotheses — Whether the veteran was suffering from a “clinically significant anxiety disorder” — Decision affirmed

LEGISLATION

Veterans’ Entitlement Act 1986 (Cth) – ss 13; 120; 120A

CASES

Bull v Repatriation Commission [2001] FCA 1832; (2001) 66 ALD 271
Collins v Administrative Appeals Tribunal [2007] FCAFC 111; (2007) 163 FCR 35
McKenna v Repatriation Commission [1999] FCA 323; (1999) 86 FCR 144
Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82

SECONDARY MATERIALS

Statement of Principles concerning Anxiety Disorder (Instrument No. 101 of 2007 as amended by Instrument No. 15 of 2011)
Statement of Principles concerning Cerebrovascular Accident (Instrument No. 51 of 2006 as amended by Instrument No 123 of 2011)
Statement of Principles concerning Hypertension (Instrument No. 35 of 2003 as amended by Instrument No. 11 of 2008)
Statement of Principles concerning Hypertension (Instrument No. 63 of 2013)


REASONS FOR DECISION


Senior Member A K Britton
12 November 2013

  1. Albert Hoath served in the Royal Australian Air Force (RAAF) between 1951 and 1971. His widow Linda Hoath seeks review of a decision made by the Repatriation Commission and affirmed by the Veterans' Review Board to refuse her claim for a widow’s pension under the Veterans’ Entitlement Act 1986 (Cth) (the Act). The stated reason for that decision was that Mr Hoath’s death was not “war-caused”.
  2. Whether Mr Hoath’s death was war-caused turns principally on whether in or around 1980 he was suffering from a “clinically significant anxiety disorder”.

STATUTORY FRAMEWORK

  1. Section 13 of the Act provides that where the death of a veteran is “war-caused”, the Commonwealth will be liable to pay a pension by way of compensation to the dependants of the veteran.
  2. It is contended that Mr Hoath’s death resulted from his period of “operational service” in Vietnam, 22 November 1967 to 19 November 1968. Therefore the question of whether his death was “war-caused” must be assessed by applying the standard of proof set out in ss 120 and 120A of the Act. Section 120 provides:
...
(3) In applying subsection (1) or (2) in respect of ... the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
...
(c) that the death was war-caused ...
This subsection is affected by section 120A.
  1. Headed “Reasonableness of hypothesis to be assessed by reference to Statement of Principles” s 120A states:

...

that upholds the hypothesis.

  1. In applying those provisions the four-step approach set out in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 98 must be followed. Lindren J in Collins v Administrative Appeals Tribunal [2007] FCAFC 111; (2007) 163 FCR 35 summarised that approach as follows (at [5]):
  2. Section 120A(3) permits an hypothesis to be upheld by more than one Statement of Principles: McKenna v Repatriation Commission [1999] FCA 323; (1999) 86 FCR 144 (at [21]). Where the identified hypothesis relies on a number of sub-hypotheses, each sub-hypothesis must be upheld or consistent with a Statement of Principles: McKenna (at [20]).

Relevant Statement of Principles

  1. In support of her contention that her husband’s death was connected with his operational service, Mrs Hoath advances the following hypothesis:
The kind of death suffered by Mr Hoath was death by cerebrovascular accident
That cerebrovascular accident was connected to Mr Hoath’s hypertension
Mr Hoath’s hypertension was in turn connected to his clinically significant anxiety disorder
That disorder was in turn connected to Mr Hoath’s of operational service namely experiencing in the course of that servicea Category 1B stressor, namely viewing corpses as an eye witness.
  1. That hypothesis rests on the following Statements of Principles:
Statement of Principles concerning Cerebrovascular Accident (Instrument No. 51 of 2006 as amended by Instrument No 123 of 2011) (the CVA SoP)
Statement of Principles concerning Hypertension (Instrument No. 35 of 2003 as amended by Instrument No. 11 of 2008) (the Hypertension SoP)
Statement of Principles concerning Anxiety Disorder (Instrument No. 101 of 2007 as amended by Instrument No. 15 of 2011) (the Anxiety Disorder SoP)
  1. It is conceded for Mrs Hoath, and I agree, that the sub-hypothesis that Mr Hoath’s hypertension was connected to his clinically significant anxiety disorder, is not upheld by the current Statement of Principles concerning Hypertension, namely Instrument No. 63 of 2013. (See cl 6(o) of that Statement and the definition of “clinically significant psychiatric disorder from the specified list”.) Mrs Hoath therefore has exercised her entitlement to rely on an earlier version of that Statement, i.e. No. 35 of 2003 as amended by Instrument No. 11 of 2008 (Bull v Repatriation Commission [2001] FCA 1832; (2001) 66 ALD 271 (at [13]-[15]).
  2. It is agreed that:
  3. However it is not agreed that a reasonable hypothesis has been raised connecting Mr Hoath’s hypertension with his operational service. That hypothesis will be raised if there is material that points to the existence of at least one of the factors listed at clause 6 of the Hypertension SoP. Mrs Hoath relies on the factor listed at cl 6(n):
suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension ...
  1. The Hypertension SoP defines a “clinically significant anxiety disorder” to mean:
... any anxiety disorder attracting a diagnosis under DSM IV [American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th edition] sufficient to warrant ongoing management by a psychiatrist, counsellor or General Practitioner ...
  1. The Anxiety Disorder SoP defines an “anxiety disorder” to include an “anxiety disorder not otherwise specified” and the latter to mean:
A psychiatric disorder (derived from DSM-IV-TR) with prominent anxiety or phobic avoidance that does not meet criteria for any specific anxiety disorder, adjustment disorder with anxiety, or adjustment disorder with mixed anxiety and depressed mood.
This definition of anxiety disorder excludes the other anxiety spectrum disorders: posttraumatic stress disorder, acute stress disorder, phobia, obsessive-compulsive disorder, adjustment disorder with anxiety, panic disorder and agoraphobia.
  1. DSM – IV defines an “anxiety disorder not otherwise specified” to mean (at p 484):
300.00 Anxiety Disorder Not Otherwise Specified
This category includes disorders with prominent anxiety or phobic avoidance that do not meet criteria for any specific Anxiety Disorder, Adjustment Disorder With Anxiety, or Adjustment Disorder With Mixed Anxiety and Depressed Mood. Examples include:
(1) Mixed anxiety depressive disorder: clinically significant symptoms of anxiety and depression, but the criteria are not met for either a specific Mood Disorder or a specific Anxiety Disorder
(2) Clinically significant social phobic symptoms that are related to the social impact of having a general medical condition or mental disorder (e.g., Parkinson’s disease, dermatological conditions, Stuttering, Anorexia Nervosa, Body Dysmorphic Disorder)
(3) Situations in which the disturbance is significant enough to warrant a diagnosis of an Anxiety disorder but the individual fails to report enough symptoms for the full criteria for any specific Anxiety Disorder to have been met; for example, an individual who reports all the features of Panic Disorder Without Agoraphobia except that the Panic Attacks are all limited-symptom attacks
(4) Situations in which the clinician has concluded that an Anxiety Disorder is present but is unable to determine whether it is primary, due to a general medical condition, or substance induced.

Evidence of clinically significant anxiety disorder

  1. In support of her contention that her husband was suffering from a clinically significant anxiety disorder after his return from Vietnam, Mrs Hoath relies upon her own observations and the opinion of psychiatrist Dr Dinnen.
  2. The Hoaths married in 1956. At that time Mrs Hoath was a registered nurse and Mr Hoath had been serving in the RAAF for four years. Mrs Hoath continued to work as a nurse in various capacities until she retired in 1991.
  3. According to Mrs Hoath, when her husband left for Vietnam in November 1967 he was in tears and apprehensive. During his 12 months in Vietnam Mr Hoath worked as a load master, responsible for ensuring that cargo loaded onto RAAF aircraft complied with permissible weight and balance limits. Throughout that period Mr Hoath gave his wife regular reports about his daily activities and disclosed that for about six months his duties included ensuring the correct identification of deceased service personnel loaded onto RAAF aircraft for transport back to Australia. This task required Mr Hoath to unzip body bags to verify whether the identification tags worn by the deceased veteran matched the accompanying documentation.
  4. According to Mrs Hoath on his return from Vietnam her husband was a “changed man”. She claims that on his return:
  5. On his return from Vietnam Mr Hoath was posted to a position in the RAAF’s stores. Mrs Hoath says her husband was very unhappy in, and struggled to perform the duties of, that position. She claimed that a year or so after his return from Vietnam her husband was devastated after receiving an unfavourable performance appraisal from his Commanding Officer. She believes this was the trigger for his subsequent decision to apply for a discharge from the RAAF. She recalls that around this time he went to see his GP and while not entirely sure thinks that he may have been prescribed anti-depressant medication. On her account this was the first time that her husband had received an unfavourable report about his work in the RAAF.
  6. Documents tendered in these proceedings indicate that four months after commencing in the position in the RAAF stores, Mr Hoath’s Commanding Officer reported that Mr Hoath was “not fully conversant with current policy/procedure” but “making every effort to improve”. Nine months later the Commanding Officer reported that “[Mr Hoath] lacked knowledge and therefore confidence ... tends to orientate his thinking downwards instead of to management level. Requires constant supervision”. In his first report, the Commanding Officer assessed Mr Hoath’s performance (based on trade proficiency, supervisory ability and personal qualities) and awarded 33 out of a possible score of 48. Nine months later he awarded Mr Hoath a score of 22. Annual assessments to August 1967 had recorded Mr Hoath’s conduct as “exemplary”.
  7. Following his discharge from the RAAF in July 1971 Mr Hoath worked for a building supply company for about 12 months before moving to Boral Ltd where he remained until his retirement in 1990. According to Mrs Hoath, 14 years after starting at Boral, her husband was transferred to a position as credit manager, and was never happy. As she recalls he “got by with the help of the ladies in the office”.
  8. Mrs Hoath stated that it was not until after her husband’s death in April 2010 that she concluded that he might have been suffering from some form of anxiety disorder. She formed that opinion following a conversation with a Vietnam veteran who told her that he had been diagnosed as suffering from Post-Traumatic Stress Disorder and described symptoms similar to those she had observed in her husband: poor concentration, heightened anxiety and social withdrawal. She says she now feels guilty that she failed to recognise that her husband was suffering from anxiety and attributes this to her preoccupation with work and children. She says she feels particularly guilty because she believes her medical training and experience should have equipped her to identify the condition and provide assistance to her husband.

Medical opinion

Dr Dinnen

  1. Psychiatrists Anthony Dinnen and Selwyn Smith each prepared written reports for the purpose of these proceedings and gave oral evidence. Neither had met Mr Hoath. In preparing their respective opinions each was reliant on documents provided by the parties. These included statements prepared by Mrs Hoath and clinical notes and reports prepared by Mr Hoath’s treating doctors. Dr Dinnen holds the opinion that after his return from Vietnam Mr Hoath was suffering from an “anxiety disorder not otherwise described”. Dr Smith disagrees.
  2. Dr Dinnen is of the opinion that the “constellation of clinical features” described by Mrs Hoath — namely her husband’s anxiety, worry, hypersexuality, nightmares featuring corpses in body bags, sleeplessness and social withdrawal — were “more than enough” to support a diagnosis of a psychiatric disorder. According to Dr Dinnen some of the changed behaviours described by Mrs Hoath — hypersexualilty, nightmares and social withdrawal — were pathological. He stated that the additional information provided by Mrs Hoath in oral evidence, in particular her account of her husband’s withdrawal from the family, gave him even greater confidence in his diagnosis.
  3. In Dr Dinnen’s opinion Mr Hoath’s history of sleeplessness was highly relevant. Pointing to the evidence of Mr Hoath having been prescribed Normison®, a drug commonly prescribed for sleeplessness, in 2000, Dr Dinnen stated that sleeplessness was a common symptom of anxiety (and other psychiatric) disorders. While conceding that it was not necessarily indicative of a psychiatric disorder, Dr Dinnen stated it was “most unusual” for a person with a psychiatric disorder not to experience some form of sleep disturbance.
  4. Dr Dinnen considers that Mr Hoath’s reported use of alcohol between 1960 until 2007 — ten standard drinks per day — indicated that he was self medicating to reduce his anxiety levels. In his opinion this evidence of heavy and sustained alcohol use did not support a diagnosis of alcoholism.
  5. Dr Dinnen stated based on his experience of treating veterans with psychiatric disorders since 1971, that many veterans, who like Mr Hoath had been involved in “casualty clearing”, found the experience very difficult and go on to suffer psychiatric conditions. He also stated that it is “very common” for service personnel suffering anxiety disorders not to report, or seek treatment for their symptoms and that “avoidance” was a common feature of that condition. In his experience it is common practice in the treatment of veterans to consult with their relatives in order to obtain an accurate history because of their reluctance to talk about their symptoms.
  6. In Dr Dinnen’s opinion Mr Hoath did not meet the criteria for a diagnosis of generalised anxiety disorder.

Dr Smith

  1. Dr Smith is of the opinion that there is no “clear evidence and convincing” evidence of Mr Hoath having suffered an anxiety disorder or some other related condition. He thought it relevant that apart from the period after his first cerebrovascular accident in 2004, there is no suggestion of Mr Hoath reporting, or seeking treatment for, symptoms of anxiety. He argued that it is something of stretch to suggest that the evidence of Mr Hoath suffering symptoms of anxiety after 2004 indicates that he was suffering from an anxiety condition on his return from Vietnam.
  2. In contrast to Dr Dinnen he thought the evidence of Mr Hoath being prescribed Normison® in 2000 to be inconclusive; pointing out that sleeplessness could be caused by any number of factors.
  3. While Dr Smith accepted that Mrs Hoath believes that her husband suffered from an anxiety disorder, he noted that she only came to this conclusion after his death. He stated that in his experience it was not uncommon for a person to construct a hypothesis after the death of a loved one in an effort to explain aberrant behaviours.
  4. While he accepted that some of the symptoms described by Mrs Hoath could constitute symptoms of an anxiety disorder, in his opinion they could equally be attributed to any number of causes including a depressive or other psychiatric disorder, a number of physical medical conditions, excessive alcohol use and/or aberrant personality traits. He disagreed with Dr Dinnen’s assertion that avoidant behaviour was a common symptom of anxiety disorders.

Did Mr Hoath suffer a clinically significant anxiety disorder?

  1. The question of whether Mr Hoath suffered from a clinically significant anxiety disorder must be determined according to the standard of “reasonable satisfaction” (s 120(4) of the Act). In making that assessment the relevant period is the six months prior to the clinical onset of hypertension, agreed to have occurred in or around 1980 (the relevant period).
  2. The Act instructs that in making that determination I must take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, including any reason attributable to: the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and the absence of, or a deficiency in, relevant official records (s 119(h)).
  3. Counsel for Mrs Hoath, Mr Saunders, argues that Mrs Hoath’s account of the significant change in her husband’s behaviour on his return from Vietnam together with the opinion of Dr Dinnen, support a finding that Mr Hoath suffered from a clinically significant anxiety disorder not only throughout the relevant period, but from the date of his return from Vietnam to the date of his death. He contends that Mr Hoath was a “classic case” of a veteran who had “slipped through the cracks” at a time when the system was ill-equipped to identify, and provide support to, veterans suffering from psychiatric disorders.
  4. Mr Saunders disputed the Commission’s assertion that Dr Dinnen’s opinion “hinged solely” on the account given by Mrs Hoath, pointing to the supporting evidence of Mr Hoath: being prescribed medication for sleeping problems in 2000; receiving an adverse performance report shortly after his return from Vietnam; and, being prescribed anti-depressant medication shortly after receipt of that report. He argues that the absence of evidence of Mr Hoath reporting to, or seeking treatment from, his treating doctors was entirely consistent with Dr Dinnen’s experience of the practice of many GPs to maintain scant clinical records and the general reluctance of veterans to speak about, or seek treatment for, their mental health problems.
  5. Mr Saunders also argues that Dr Smith’s unwillingness to concede “any point” even where the evidence was “overwhelming” raises concerns about the reliability of his opinion. Furthermore he argues that Dr Smith put the “bar too high” by requiring “clear and convincing evidence” before being prepared to make a diagnosis of a psychiatric disorder.
  6. Mrs Hoath was plainly an honest witness. Her ability in oral evidence to give a more detailed account of her husband’s symptoms than that contained in earlier statements prepared in support of her claim in my opinion did not indicate that she was attempting to embellish her account. I think the most probable explanation for Mrs Hoath’s ability to provide greater detail in her oral evidence, is that her memory had been prompted as a result of reviewing and discussing the additional information gathered in the course of these proceedings. I also accept that she now holds the honest and genuine belief that her husband was suffering from some form of anxiety disorder on his return from Vietnam until his death.
  7. I am unable as urged by Mr Saunders to find that Mr Hoath was prescribed anti-depressant medication after he received an adverse performance report in 1969/1970. Not only is this not mentioned in any of the medical records or reports produced in these proceedings but Mrs Hoath’s own evidence puts it no higher than a possibility. Nor am I persuaded that the evidence of Mr Hoath being prescribed sleeping medication in 2000 and receiving an adverse performance assessment supports a finding that since his return from Vietnam, or, at least throughout the relevant period, Mr Hoath was suffering from a clinically significant anxiety disorder.
  8. It cannot be inferred from his doctor’s decision to prescribe Normison® that the symptoms of sleeplessness Mr Hoath reported and sought treatment for in 2000, were representative of those he had been experiencing over the past 30 years. While arguably the explanation for Mr Hoath’s difficulties in his new role in the RAAF on his return from Vietnam was that at the time he was suffering from an anxiety disorder; equally the explanation could be (as his Commending Officer apparently believed to be the case), Mr Hoath’s lack of experience in, and aptitude for, that type of work.
  9. To establish that Mr Hoath suffered a clinically significant anxiety disorder it is not necessary to establish that he had been subject to ongoing management by a psychiatrist, counsellor or General Practitioner throughout the relevant period, rather it must be established that the disorder was sufficient to warrant ongoing management by a psychiatrist.
  10. As correctly pointed out by Mr Saunders, there is no requirement that there be “clear and convincing evidence”, rather I must be reasonably satisfied that Mr Hoath suffered a clinically significant anxiety disorder. The real issue raised in this matter is whether the limited available evidence is sufficient to support that finding.
  11. I accept as submitted for Mrs Hoath that it is not fatal to her claim that prior to 2000, there is no evidence of her husband reporting to his doctors, or seeking treatment, for any of the behaviours she observed. It is a matter of common knowledge that some people who suffer anxiety or other psychiatric conditions fail to recognise the significance of, or seek treatment for, their symptomatology. Nonetheless Mrs Hoath’s claim that her husband suffered a clinically significant anxiety disorder is not assisted by the absence of such evidence.
  12. Nor do I accept that the evidence of Mr Hoath exhibiting symptoms of anxiety from 2004 assists in the determination of whether he was suffering from an anxiety disorder during the relevant period. Not only is there a 25 year gaps between these two periods but as Dr Smith points out, the former corresponds with a period of significant decline in Mr Hoath’s neurological function.
  13. I have before me the competing opinions of two eminent and experienced psychiatrists. Dr Dinnen is of the opinion that the behaviours described by Mrs Hoath are sufficient to not only warrant a diagnosis of an “anxiety disorder not otherwise stated” but one that was “clinically significant”. Dr Smith disagrees that some of the behaviours described by Mrs Hoath relied upon by Dr Dinnen in making that diagnosis could be characterised as symptoms of an anxiety disorder but concedes that it is possible that Mr Hoath suffered from such condition. Nonetheless he thinks it is unlikely that Mr Hoath suffered from an such a condition and even less likely that the claimed behaviours could be described as “clinically significant”.
  14. It is notoriously difficult to make a retrospective assessment about whether a person suffered from a psychiatric condition, especially in the absence of contemporaneous evidence or medical assessment. While I accept that Mr Hoath’s behaviour had changed on his return from Vietnam and that in these proceedings his wife attempted to give an honest account of his behaviours, I am not confident that her current recollection of her husband’s behaviour spanning a period of some forty years is entirely accurate. While not conclusive in my opinion it is relevant that notwithstanding her own medical experience and exposure to people suffering stress and anxiety it was not until after her husband’s death that Mrs Hoath came to suspect that her husband might have suffered from some form of psychiatric condition. The explanation for her failure to recognise the significance of his behaviours may be, as she now believes, attributable to her preoccupation with other matters. Equally it may be that at the time the behaviours were not quite as severe or pronounced as she now recalls.
  15. While possibile, on the available material I am not reasonably satisfied that in the relevant period Mr Hoath suffered a clinically significant anxiety disorder. Accordingly the decision under review must be affirmed.

I certify that the preceding 48 (forty eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

....................[SGD]....................................................
Associate

Dated 12 November 2013

Date(s) of hearing
2 and 3 October 2013
Counsel for the Applicant
Tim Saunders
Solicitors for the Applicant
Kemp & Co Lawyers
Advocate for the Respondent
Tim O'Reilly

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