Balloch and Repatriation Commission - [2005] AATA 782

Administrative

Appeals

Tribunal

WRITTEN REASONS FOR ORAL DECISION [2005] AATA 782

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2004/951

VETERANS APPEALS DIVISION		)
Re		DANIEL BALLOCH

Applicant

And

REPATRIATION COMMISSION

Respondent
WRITTEN REASONS FOR ORAL DECISION

Tribunal

Senior Member, Mrs Josephine Kelly
Dr John Campbell, Member

Date of Decision        8 July 2005
Date of Written Reasons             16 August 2005
Place  Sydney

Decision

The decision of the Repatriation Commission dated 22 August 2003 refusing Mr Balloch’s claims is affirmed.

[sgd] Senior Member, Mrs Josephine Kelly
Presiding Member

CATCHWORDS

VETERANS’ AFFAIRS – eligible war service – complaint of Adjustment Disorder and impotence – diagnosis of anxiety disorder and depressive condition and consequential impotence not supported by the evidence –-– applicant’s evidence inconsistent with clinical notes – decision affirmed

LEGISLATION

Veterans’ Entitlement Act 1988

WRITTEN REASONS

At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.

The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.

WRITTEN REASONS FOR ORAL DECISION

Senior Member, Mrs Josephine Kelly
Dr John Campbell, Member

Introduction

The case for Mr Daniel Balloch is that:

He is suffering from a psychiatric condition or conditions variously described, consequent upon chronic arthritis and chronic pain, and subsequent limitation of mobility and lifestyle.
He is suffering from impotence, consequent upon his depressive disorder.

Proceedings

He lodged a claim with the respondent, the Repatriation Commission ("the Commission") on 31 March 2003.(T4) It had been prepared by Mr Casey, an RSL advocate. The conditions claimed were adjustment disorder and impotence.
The Commission has accepted various conditions as War Caused pursuant to the Veterans Entitlements Act 1986, ("the Act"). Mr Balloch served in the Royal Australian Navy from 11 February 1967 to 12 June 1987. The previously accepted conditions relied upon in this claim are dislocation of the right shoulder, accepted 1 March 2001, osteoarthrosis of the right ankle, accepted 18 September 2001, and osteoarthrosis of the right knee, accepted 5 December 2001. It is agreed that all arose from incidents that occurred during a period of eligible service and not operational service.
The decision under review is that made by the Veterans Review Board on 5 April 2004, which affirmed a decision of the Repatriation Commission on 22 August 2003, refusing Mr Balloch's claims.

Issues

The issue is whether or not Mr Balloch has a psychiatric condition or conditions arising from his naval service. If he does not, then the claim for impotence must also fail.

Mr Balloch’s Evidence

Mr Balloch gave the following evidence. He was born on 9 May 1948, and is now 57 years old. He gave evidence about his service history and his family history. He described going to Vietnam on two occasions on HMAS Duchess when it escorted HMAS Sydney to Vung Tau Harbour in Vietnam during the Vietnam War. These trips were operational service within the meaning of the Act, and occurred from 3 April 1971 to 8 April 1971, and from 17 May to 1 June 1971. He described being anchored in Vung Tau Harbour and acting as a sentry for divers who were looking for limpet mines.
One night information was received that shelling was going to occur, and so his ship went out to sea. He said he had continual recollection of tracer and he always had concerns about whether the people who went there, got home. In giving his evidence, he became visibly upset and tried to control himself. He said that even though he was at a distance he could see the soldiers arriving in Vietnam and those leaving. They had different body language. He could not see the expressions on their faces. The ones coming back or going back home had a spry step, and the ones going into Vietnam did not. He did not speak to them at all or have any other contact with them. He could see them clearly with binoculars.
The soldiers coming and going were a couple of hundred metres away. He said he did not discuss his feelings with anyone and did not break down. He did not see anyone getting killed or anything horrible. He said he coped with it because it was his job. He worked in Naval stores, replenishing stores for the ship.
He was not affected in any way by going to action stations. The first time he ever mentioned his concern about what happened to the people he saw arriving in Vietnam was to Dr Dinnen, and then Dr Roberts, both medico-legal witnesses, and in the Tribunal at the hearing. He did mention to this Dr Koller, his treating psychiatrist, but he did not do so initially.
It was in the period from 7 December 1972 to 12 June 1987 that he suffered the relevant injuries when he served at various bases and on a ship. He first injured his right ankle when he fell and badly sprained it when leaving the Navy Stores Office. He was on crutches for, at least, a week. Osteoarthrosis set in later.
He first hurt his right shoulder playing football in a service game. He suffered various full and partial dislocations numbering 30 or 40 before being operated on at the Naval Hospital, Penguin, at Balmoral in 1974. His shoulder was strapped up for some time to immobilise it. He was off work for two or three weeks and then returned to light duties. He had some physiotherapy at HMAS Penguin. He said it has always given him trouble since, and has got worse over the years.
He injured his right knee in 1977 on HMAS Melbourne when travelling to the UK. The ship was in rough seas when a drawer in a filing cabinet came out and hit his knee. He has developed an arthritic condition. He had an arthroscope in February 2004, by Dr Sorial who thought that may delay the need for a knee replacement for five or 10 years, but Mr Balloch said he may need the knee replacement in six months to a year. It is nearly 18 months since that procedure was carried out.
He is currently having some physiotherapy. He said that he cannot straighten his leg but is working on it. He said he was a bit scared or a bit concerned about having the operation done and had not booked for it. He would be laid up for three months after the operation and there is no guarantee of success. He does have sufficient sick leave to cover such a period.
Since his resignation from the Navy in 1987 after completing 20 years service, he has worked for two organisations. The first was Commonwealth Engineering for about 12 months. The reason he resigned from the Navy was due to this employment at Commonwealth Engineering. However, the contract that the company was expecting did not eventuate and he left. He then went to work for Grace Bros, which later became Myer. At Commonwealth Engineering he worked as a stores superintendent from June 1987 to March 1988. In March 1998 he became a stock manager with Grace Bros. His current position is the districts officer at Myer, Parramatta. He is responsible for the receiving dock and marking room area, and transporting stock from reserve and receipt and return of stock. He said he had a lot of mobility problems in his knee and ankle. He used to help his work colleagues but he cannot bend his knee and so does not assist them as he once did. He has restricted movement in his shoulder and ankle.
A lot of his work is writing reports and working on a computer. In short it is supervisory work. His knee, he said, is his biggest problem. While sitting is all right, standing is painful, and standing up from a sitting position is painful, as is standing on it for too long. He said he feels he has got an 80 year old leg. He is concerned about his right ankle, knee and shoulder and how crippled up he will become and is worried about continuing in his employment.
He is stressed about it, he said, and spends a lot of sleepless hours in bed. He does not look forward to the next day getting up because he knows he will have a day of pain. He takes Arthroade (a glucosamine chondroitin concoction), one morning and one at nigh, one Celebrex, 200 milligram daily, and sometimes will take some Panadeine Forte, a prescription drug. In regards to the Panadeine Forte he stated that he occasionally had one or two. He also takes Neurofen, which is purchased over the counter occasionally. He has not been back for a prescription of Panadeine Forte which was first prescribed by Dr Sorial after his February 2004 arthroscope and he has not had any of that drug for three months.
Although he said that Dr Bounds, his general practitioner had given him three or four scripts, that is not supported by the doctor's notes. He said when he takes Neurofen it is at night to help him sleep. He has a long history of problems sleeping. One cause is his tinnitus, which requires him to have a television or radio on. He said that he wakes up with pain in his shoulder, knee and ankle depending on how he moves or the position in which he sleeps. He is often awake for hours at night. He says he goes home and does not interact with his family as he should. He has a shower and lies on his bed, then goes out to the dining room, as I understand it, for dinner, or sometimes his wife might bring his meal into his room. He sometimes falls asleep at 9.00pm and awakes again at 11.00pm "because of the pain". Thoughts about where he is heading keep "charging around" in his mind.
He said he had mentioned it to Dr Bounds, and they spoke about Mogodon, but he took them many years ago and didn't think they did anything. In short, he has not taken any tablets to assist him with his sleeping problems. He also now takes Arapax. He said he does not want to be on anymore medication.
He is concerned about the crippling effects of arthritis and fears for the future in terms of his mobility, and ability to do normal everyday things as well as to work. He does not do some things he used to, such as being involved with a Football Club, or driving long distances, or maintenance around the house, or visiting his parents as often as he once did. He has no concern about being sacked or fired, but is concerned about how long he can work with the pain he is in.
Walking from Parramatta Station to Westfield Parramatta, where he works, he says, "By the time I get there my leg has had enough". He does not think he can work another 8 years. The only reason he is working is that he has a family to support.
His relationship with his wife is fine except for the impotence which has occurred for about three years. He said Dr Bounds said it was caused by stress, depression and sometimes diabetes, from which he also suffers. He said he discussed the use of Viagra with Dr Bounds, but given the pain he suffers in the right side of his body he has not taken it or anything. He does not think he would cope well physically with sexual intercourse. He said his wife is a good woman and they are both coping.
He said Dr Bounds discussed depression with him years ago. Dr Bounds has been the family doctor from 1973, although when Mr Balloch was in the Forces he did not see him. He said he had discussed his emotional problems with the doctor over the past five or six years. He sees Dr Bounds only about four times a year when he needs prescriptions.
When asked about any other problems, he said he had cried discussing things with Doctors Dinnen and Roberts when talking about troops, as he did at the hearing. He was also upset when he raised impotence with Dr Bounds.

Other Evidence

The application for the conditions, the subject of these proceedings is important. There was filled out and lodged by Mr Casey, an RSL advocate T4. It was he who put the name adjustment disorder, to Mr Balloch's symptoms. The document is stamped:
Received by the Department 31 March 2003.
Mr Casey filled in 2000 as the year when Mr Balloch first became aware of the symptoms of adjustment disorder. Dr Bounds filled in the medical diagnosis side of the form. In answer to the question:
When did the Veteran first consult you for this condition?
And he answered, "Today", to support that date and not the five years that Mr Balloch stated.
Similarly, in relation to impotence, Mr Casey has stated 2000 was the year in which Mr Balloch first became aware of the symptoms of that condition. He also related it causally to a constant feeling of stress, mood swings and depression. In contrast, Dr Bounds' diagnosis was loss of libido, erectile dysfunction based on history and recommended a psych opinion. None had been sought before. He stated the Veteran first consulted him about that condition on 18 November 2002.
The doctor's clinical notes for that consultation are somewhat difficult to read, but as I understand them they say:
Has worry about nocturnal frequency, dribble, the difficulty with starting stream, PSA, PR normal prostate, no enlargement, no erectile dysfunction.
It does not support the statement made by Mr Casey or by Mr Balloch in his evidence.
Dr Bounds referred Mr Balloch to Mr Koller, according to Mr Balloch, because of Mr Casey's recommendation. He has seen Dr Koller five or six times, and he is seeing him again in September. That doctor's report of 8 August 2003, diagnosed Adjustment Disorder with Anxiety and Depression. He identified stressors that related to pain in right shoulder, knee and ankle, which had had a negative effect on his life. He also referred to a suggestion of over-use pain in certain areas of the left side of the body, eg, the hip region (T8). There was no evidence to any other doctor at the hearing about such pain. In Dr Bounds’ notes, the first reference to constant pain in the right knee is 20 October 2003, about eight months after the claim was lodged. (Exhibit R3).
Dr Dinnen, psychiatrist, saw Mr Balloch for a medico-legal report on 14 December 2004, and prepared a report, 5 January 2005 (Exhibit A1). He suggested that Mr Balloch might consider medication. The next day Mr Balloch attended Dr Bounds and obtained a prescription for Arapax. When Mr Balloch next saw Dr Koller, that doctor he said, agreed that it was fine to take it. Mr Balloch said that prior to December 2004 there would have been discussion with Dr Bounds about taking medication, but he was reluctant to do so because his wife had been on Efexor for post natal depression for their first and fourth children. He said, seeing that he knew how bad she was, he was not that bad and he was taking enough medication.
As noted above that is not consistent with Dr Bounds’ notes and the fact that he put in a date of the first time the condition was reported to him as being today, that is, in March 2003.
When asked about the effect of Arapax and taking Arapax, Mr Balloch said, "Haven't felt worse. Maybe some minor improvement. Maybe holding me on an even keel and a little better on it." He said that he still had the same sleepless nights, because he was just concerned about his coping in the future with not being able to do things, knowing "I need the operation", and he was concerned about the knee replacement.
The history taken by Dr Dinnen reflects the evidence Mr Balloch gave at the hearing in relation to his chronic pain in the right shoulder, knee and ankle, and the consequential problems he had sleeping, restriction of movement, reduction in activities, withdrawal from his family, irritability, impotence and worry about the future. Similar time frames were told to the doctor. For example:
He said his mind is always going because he can’t sleep. He is worrying about his knee and about everything. I asked if he felt depressed. He said he does, with regards to his avoidance of socialising with people. Not sleeping and being affected by aches and pains causes him to feel depressed.
Dr Dinnen also recorded Mr Balloch's two trips to Vietnam and that he became tearful and said:
He said he had never mentioned it to anybody.
He said feeling were aroused by his recollections of seeing the soldiers in the harbour, both arriving and leaving Vietnam.
He said through the years he thought about what happened to them many times.
Dr Dinnen's diagnosis was depressive disorder consequent to chronic arthritis and chronic pain, and subsequent limitation of mobility and lifestyle.
Dr Roberts, who also saw Mr Balloch for a medico-legal opinion took a similar history from Mr Balloch as was given to Dr Dinnen, and in evidence at the hearing. His reports of 19 and 23 January 2005, Exhibit R1, are comprehensive. Dr Roberts found that Mr Balloch was not suffering from a reactive state at all, and specifically no evidence of an adjustment disorder, and while there was some evidence of a negative mood, he did not consider it reached the level of diagnosis of depression.

Conclusion

We found Mr Balloch's evidence unreliable and exaggerated. The date of onset of his complaint and prescription details are inconsistent with Dr Bounds’ contemporaneous medical notes and the information the Doctor provided in the claim form as set out above. While claiming chronic pain, Mr Balloch takes little analgesic medication and although sleeplessness was said to be a major difficulty, he has not sought medication for that problem.
This claim has arisen after Mr Balloch consulted an RSL advocate. There is an absence of independent evidence of the complaints before the claim was made. He has a responsible job and has not been reprimanded or criticised for the performance of that work. There is no evidence of inter personal difficulties either at work or at home.
Dr Dinnen and Dr Koller have accepted Mr Balloch's complaints and history on which they base their conclusions, as has Dr Roberts. However, Dr Robert's assessment is that Mr Balloch's concern about his difficulties does not reach a level as such that he suffers from a reactive state or depression.
Given Dr Roberts’ opinion on the basis of accepting Mr Balloch's history and our assessment that such a history is unreliable and exaggerated, we are confident that there is no symptomatology of any psychiatric condition as alleged or as arose in evidence.

Decision

Accordingly, we affirm the reviewable decision.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly and Dr John Campbell, Member

Signed: Miss Sacha Keady
Associate

Date/s of Hearing  7 July 2005
Date of Decision  8 July 2005
Date of Written Reasons for Oral Decision          16 August 2005
Solicitor for the Applicant  Fairbairn Lawyers
Advocate for the Respondent     Mr N. Bunn