Charles Binns and Repatriation Commission - [2013] AATA 655

[2013] AATA 655

Division Veterans' Appeals Division

File Number

2012/2060

Re

Charles Binns

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President S D Hotop

Date 13 September 2013

Place Perth
The decision under review is affirmed.
........................[sgd]...........................................
S D Hotop

Deputy President

CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant served in Royal Australian Navy 1988-1992 – applicant involved in motorcycle accident while travelling to Base to perform duty during defence service – applicant claimed disability pension for head injury – Tribunal not satisfied that applicant suffered head injury or traumatic brain injury in motorcycle accident – applicant subsequently contracted frontal lobe dysfunction – frontal lobe dysfunction not defence-caused – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 70, s 120(4) and s 120B
REASONS FOR DECISION
Deputy President S D Hotop
13 September 2013
Introduction

Charles Binns (“the applicant”), who was born in February 1970, served in the Royal Australian Navy (“RAN”) from 8 February 1988 to 23 June 1992. The whole of that period of service constitutes “defence service” for the purposes of Part IV of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”).
On 18 May 2005 the applicant made a claim for a disability pension under Part IV of the VE Act in respect of conditions described by him as “Bi-polar Disorder”, “Attention Deficit Disorder”, and “Anxiety” which he claimed had resulted from a motorcycle accident in which he was involved in 1989 while travelling to work.
On 18 October 2005 a delegate of the Repatriation Commission (“the respondent”) disallowed the applicant’s claim.
On 23 May 2006 the applicant made a claim for a disability pension under Part IV of the VE Act in respect of conditions described by him as “closed head injury”, “head trauma” and “neurological disorder left elbow” which he claimed had resulted from a motor bike accident on the way to work on 20 January 1989.
On 13 July 2006 a delegate of the respondent determined that “healed fracture of the left elbow is not related to service” and that “no medical condition is present to answer the claim for “closed head injury”, “head trauma”, and disallowed the applicant’s claim.
On 12 September 2006 the applicant made an application to the Veterans’ Review Board (“VRB”) for review of the delegate’s decision of 13 July 2006.
On 14 May 2009 the Veterans’ Review Board consented to the withdrawal by the applicant of his application in respect of “healed fracture of the left elbow”, and adjourned the hearing of his application in respect of “closed head injury”, “head trauma”.
On 16 June 2011 the VRB varied the delegate’s decision of 13 July 2006 by changing the diagnosis of the applicant’s condition to “frontal lobe dysfunction”, and affirmed that decision (as so varied).
On 28 May 2012 the applicant made an application to the Tribunal for review of the VRB’s decision of 16 June 2011.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–T47) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·Exhibits A1, A2 and A3 tendered by the applicant;
·Exhibits R1 and R2 tendered by the respondent; and
·the oral evidence of the applicant, Dr Warwick Black, and Dr David Rosen.
Contemporaneous Records Regarding Motorcycle Accident on 20 January 1989
A Triage Nursing Assessment, Emergency Centre, Royal Perth Hospital, dated 20 January 1989, records that the applicant arrived at the hospital at 7.30 am on 20 January 1989 with the following presenting complaints:
·motorcycle – fell off going round corner (120 km);
·no LOC [loss of consciousness];
·(query) dislocated left elbow, abrasions and lacerations;
·painful left knee;
·multiple abrasions. (T35, p 174)
A Royal Perth Hospital Anaesthetic Record regarding a pre-anaesthetic consultation with the applicant on 20 January 1989 records the following history;
“ drinking heavily until 0420
coffee at 0620
came off motor bike at 0640
no LOC …”
and indicates that the applicant’s weight was 79 kgs and that, on examination, the applicant’s head, neck and abdomen were normal. (T35, p 176)
A report of Dr G Day, Registrar, Department of Orthopaedic Surgery, Royal Perth Hospital, addressed to the Commanding Medical Officer, Garden Island Naval Base, dated 23 March 1989, notes that the applicant was admitted on 20 January 1989 and discharged on 3 February 1989, and states as follows:
“ DIAGNOSIS:
Open fracture left olecranon
HISTORY:
This 18 year old motor biker, sustained an accident on his bike, sustaining a open comminuted fracture of the left olecranon, laceration over the left patella and extensive abrasions on the left side of his chest and left hand.
MANAGEMENT & PROGRESS:
He sustained no neurovascular loss in the left upper limb, and on the day of admission, the wound over the left elbow was debrided and the fractured olecranon openly reduced and internally fixed.
Wound was further partially debrided 3 days later, and late sutured on 26 January 1989.
The wound healed very well, and his arm was placed in plaster slab to be followed up in the Orthopaedic Clinic at Royal Perth Hospital.” (T2, p 9)
A RAN Clinical Notes/Discharge Summary by LCDR AG Robertson, RAN Medical Officer, dated 31 March 1989 states as follows:
“ ABRP Binns was admitted to Royal Perth Hospital on 20.1.89.
DIAGNOSIS:
Compound fracture of (L) olecranon and skin laceration to (L) knee.
ADMISSION:
Involved in motor bike accident.
INVESTIGATION:
Xrays – # (L) olecranon.
OPERATIONS:
Reduced under GA and (L) olecranon fixed with K wires. Returned twice for debridement and delayed primary suturing.
MANAGEMENT:
-Bed rest
-IV antibiotics 11 days.
-Transfer to RANSQ(S) on 3.2.89.
MEDICATIONS ON DISCHARGE:
Nil
PLAN ON DISCHARGE:
Light Duties.
IMS to Category Six.” (T2, p 10)
A RAN medical record, dated 24 April 1989, states as follows:
“ …
RECORDED FACTS:
This sailor was admitted to Royal Perth Hospital on 20.1.89 with a commuted [sic] fracture of (L) olecranon. He had open reduction and internal fixation with tension band wiring. He was transferred to RANSQ (S) and was sent on convalescent leave for 3 weeks on 06FEB89.
His POP has been removed and he was last reviewed by Dr Day on 17.3.89 who states ‘He has painfree ROM left elbow at 35-100°. Xray is beyond belief – the gap is filling in with bone. I wish I knew his secret.’
BY THE BOARD:
1. This sailor is progressing well.
2. The Board recommends category SIX for Six Months.
MEMBER’S STATEMENT:
Following my appointment with the Specialist I consider it safe for me to carry out some form of light duties.
…” (T2, p 11)
A report of Mr A Prosser, Orthopaedic Surgeon, Department of Orthopaedic Surgery, Royal Perth Hospital, addressed to the RAN Medical Officer, dated 9 June 1989, states as follows:
“ Mr Binns had a gross compound fracture of the left olecranon in January. The fracture is now united with some residual distortion of the articular surface which may predispose him to a post traumatic arthropathy, progressing over the next five to twenty years.
His wires require removal, which I will arrange in the near future.” (T2, p 12)
A RAN medical record, dated 7 September 1989, states as follows:
“ …
RECORDED FACTS:
1.This sailor was admitted to Royal Perth Hospital on 20.1.89 with a communuted [sic] fracture of (L) olecranon. He had open reduction and internal fixation with tension band wiring.
2.He was seen on 09 June 1989 by Dr Prosser who states: ‘Mr Binns had a gross compound fracture of the left olecranon in January. The fracture is now united with some residual distortion of the articular surface which may predispose him to a post traumatic arthropathy, progressing over the next five to twenty years.
His wires require removal, which I will arrange in the near future.’
3.His wires were removed on 10 July 1989 and he has made a good recovery since then.
BY THE BOARD:
1.Sailor has made very good recovery.
2.The Board recommends Category One.
MEMBER’S STATEMENT:
I feel perfectly fit and able to return to sea …” (T2, p 15)
A statement provided to the Western Australia Police, signed by the applicant and dated 15 February 1989, states as follows:
“ At about 6.40 am on Friday 20/1/89 I was riding my Honda 250 cc motor cycle UK 2942 south on the Kwinana Freeway. Near Mill Point Rd I came into a left hand bend about seventy kilometres an hour.
As I went into the left hand bend the bike drifted to the right, I braked and tried to straighten up. As I braked the back wheel locked up on something. I tried to control the bike but it then went onto the verge. I then came off and landed on the verge.
I am the holder of a learners permit, the number is 229975. I had held the permit for a month when the accident occurred. I hadn’t had any lessons prior to that. I was on my way to work at Rockingham and at the time I was not accompanied by an instructor. I am aware that I should of [sic] had an instructor with me at the time. However, on the day I was stuck for transport and had no other way of getting down there.
I received an injury to the elbow and knee as a result of the accident. When the accident occurred the back brake must of [sic] locked on loose gravel or possibly oil on the road. I feel that if I had of [sic] been an experienced rider I may of [sic] been able to control the skid.
I have since sold the bike and I will not be going for my bike test.” (T22, pp 111, 113)
The Applicant’s Service Psychological Records
On 15 November 1989 LCDR AG Robertson, RAN Medical Officer, referred the applicant for psychiatric assessment as follows:
“ Thank you for seeing this sailor who was charged on Tuesday with ‘wilful exposure’. His arraignment is tomorrow. The sailor gives a history of an urge to ‘expose himself’ which he did regularly until he was caught. I would appreciate your review and advice re treatment.”
Dr T H Gidley, in response to that referral, reported as follows:
“ Appeared in Court today but case has been held over for three weeks. Gives a 2 months history of sexual exposure. Trying to set up a sexual relationship – looking for a positive response from victims. No feeling to physically assault victims and no past history of aggressive behaviour. Impulse occurs several times a day – looks for young female (adult) victims. After exposure and masturbation feels relief. Previous mature heterosexual experiences. Feels frustrated at moment because he has no regular sexual partner. Very concerned about his legal situation and how it might affect his family. Not so concerned about his situation in Navy –says that he has lost interest in his job. Would like to return to school to complete education.
Relates development of his sexual difficulties to motor cycle accident early this year. Major injury to left elbow – in hospital 4 weeks, now feels damaged. Believes his physical prowess has declined which has generally eroded his confidence. Lack of confidence has made it difficult for him to start new social relationships. Consuming more alcohol now – 3 to 4 heavy drinking sessions per week.
Personal history – Stable family background close to both parents, 3^rd of 4 sibs. No family history of nervous illness. No adverse childhood experiences. Early sexual development appears to be normal – limited experience.
Reasonable student, outgoing at school, popular. Joined Navy on impulse, no clear career plans. Hard to accept discipline of service – a few minor charges.
No major past physical illnesses. No previous psychiatric treatment.
Personality – Easy going type. Withdrawn over recent months. No close friends in Navy. Few interests now. Feels guilt at recent behaviour.
O/E tall young man, smells slightly of alcohol. Forthcoming with history. Mild depression evident. Average intelligence, judgement appropriate. Insightful and seems motivated to modify his behaviour.
Diagnosis: Sexual exhibitionism and adjustment disorder. Has agreed to attend for counselling to explore dynamics of his behaviour. Advised to restrict his drinking. Fit for normal duties. May need medico legal report to present in Court. There appears to be no medical reason why his service with the Navy should be discontinued.” (T2, pp 16–17)
A report of Dr Peter Wurth, Consultant Psychiatrist, addressed to Dr N Starmer, HMAS Penguin, dated 23 April 1992, states as follows:
“ Re: Charles Binns
Thanks very much for asking me to see Charlie. When he consulted you a couple of weeks ago he felt in a state of some agitation because he was not getting anywhere in his desire to be discharged from the Navy. He felt that no one was taking him seriously and that he could not stand staying where he was so a couple of days later he went AWL, and because of Easter I gather he did not return to Penguin from Tasmania until a couple of days ago after he handed himself in on the advice of his father. Nevertheless he feels hard done by that there was a two week delay in seeing me, and blames the Navy for this rather than looking at the difficulty that he produced by going AWL and interfering with this process of referral. This habit of his to not take personal responsibility and see his predicament as solely due to others around him permeated his history giving to me today.
He tells me that he has been using a lot of drugs for a long time and he was upset that people seem to feel that he was fabricating this history in order to get his discharge. He freely admits that his confession was motivated by the desire to get his discharge but not that he was lying about his drug abuse. He has smoked marijuana to [sic] a variable basis since before he was in the Navy, sometimes every day, for perhaps a month at a time and at other times more intermittently so that it perhaps averages out to two or three times a week. He has used alcohol quite a lot and still gets drunk most weekends and has five or six cans of beer on a couple of other occasions during the week. He has ‘snorted’ speed on quite a few occasions and has experimented on very infrequent occasions with LSD and cocaine. On no occasion has he injured himself. He said he is well aware of the dangers of drug use, but is quite content to continue his current level of usage of alcohol and marijuana but not of other drugs. He is not interested in any treatment or rehabilitation for this type of drug usage. When he consulted you he was feeling that he wanted some help with his emotional state but now things have settled down a little and he does not want this sort of help, and the main thing he wanted from me was any assistance I could provide in getting him discharged from the Navy.
He joined four [sic] years in the middle of Year 12 somewhat impulsively. In 1989 he had a bike accident with a severely fractured olecranon so that he was not able to stay on his ship which was due to sail up top, and spent a year at Stirling. He was not able to pursue physical fitness to his normal extent, and started feeling mildly depressed and lacking in confidence. He started exposing himself sexually from his car to young women and was apprehended after three or four months of this behaviour and charged on two counts of this. He saw a psychiatrist in Western Australia whose initial report was in his MHDs, and subsequently attended for six weekly sessions which he found very helpful. He has not re-offended in this manner since nor felt the urge to do so. He was put on twelve months probation by the civilian court and his rank reverted from AB to Seaman as the Navy punishment for this offence. He was often bored during his subsequent twelve months at Stirling and drank heavily and apparently performed his duties poorly. As a result of all this he feels that he has not achieved anything during his Naval service of four and a quarter years and he thinks that he is unlikely to achieve anything in the twenty-one months remaining of his current engagement. He dislikes many of his colleagues and feels that they are boring and that he is better than they, and he is in general quite fed up and keen to get out, but volunteered no more specific reasons for this desire.
He now wants to complete his education by doing his HSC and he wants to have guitar and singing lessons as he feels he has some talent in this area.
He presented as a somewhat angry young man who had little insight into his personality and his contribution to the difficulties that he has brought on himself. He had little insight into the severity of his drug use and although he paid lip service to the awareness of the dangers he did not seem to take this seriously. He certainly seemed to have no awareness of how his frequent drug use was contributing to his failure to get much out of his life at the moment. He did not appear at all depressed or anxious at this interview and there was no evidence that he was suffering from a psychiatric illness other than his drug abuse.
He freely admitted that he will continue to create as much trouble as necessary unless he gets his discharge and I must say that I believe him. Because of his lack of insight and motivation I do not think he is candidate [sic] for any drug rehabilitation nor any psychological therapies. I think that he is unsuited to service in the Navy and I would strongly recommend his discharge RNIN. I have no plans to review him.
…” (T2, pp 22–23)
The Applicant’s Evidence
The applicant confirmed that he had made several statements which are included in the T Documents and that he adhered to the contents of those statements.
The applicant provided the following statement to the Department of Veterans’ Affairs (“DVA”) when he lodged his claim in respect of bipolar disorder, attention deficit disorder, and anxiety on 18 May 2005 (see paragraph 2 above):
“ …
Jan 1987 – Jan 1988  Hardie Iplex Plastics
Factory Hand
I left school halfway through year 12 and worked here, I was into fitness and health. I had no problem with Bipolar depression or ADD. I was happy with life and had plenty of friends.
Feb 8^th 1988 – June 1992  Royal Australian Navy
Radar Plotter
Ships Husbandry
  Ships Diver
  Public relations
One day I walked passed the Navy Careers Office and after talking to the recruitment officers decided to join the Navy. I easily passed the screening tests and was accepted as medically fit.
January 20^th 1989  Head Injury
I fell of my motorbike landing on my head on the way to work going down the freeway, no brain scans were conducted and no blood test were done for 5 days. This is when all my behaviour began to change. At the time I was unaware I had suffered from a TBI (Traumatic Brain Injury).
November 1989  Willful Exposure
I was charged with willful exposure. I had been exposing myself for a few months before I was eventually caught. I did not know why I was exposing myself but it gave me a feeling of power & I enjoyed it.
All was going well at work until my motorbike accident. After which I seemed to change and people said I was different, I knew something was not quite right but dismissed this as I could not fail. I had no problem through basic training and the Special Radar training. I believe that the big decline began here. I was very self-destructive and did things I wouldn’t normally do. One of my shipmates (Able Seaman …) said to me that I had changed and referred to the knock on my head. I needed a CT scan or an MRI & some serious evaluation.
Once my arm and knee had sufficiently healed I was placed back on HMAS Derwent and sent to Asia. I drank a lot and went of exploring alone. I slept with transvestites & generally acted in a devious manner. I was late back to the ship on my first port of call. This was not me, I don’t know who it was but did not know how to correct myself as I felt guilty for my actions. I assumed at the time I was just changing or maturing or was trying to fit in. Everything just went down hill. Also my work performance and attitude was constantly declining.
I started smoking pot and using speed as this made me feel better about myself . I went from posting to posting with a fairly apathetic attitude. Whilst based at HMAS Watson I was smoking hash and taking ecstasy eventually I ended up at HMAS Penguin Hospital I was freaking out and with no idea what to do. I now recognize this as a manic attack.
I went AWOL to Tasmania and stayed with my brother for a week only to have to return and continue my struggle for discharge. I felt trapped in a cage and needed to escape. I wrote a letter to the CO begging for him to let me out and explaining my thoughts and concerns (This letter could not be located). He agreed to let me out much to the dismay of my defending officer who did not like me and told me not to give the letter. This letter should have been kept on file as I was formally charged and sentenced to 21 days without leave. I worked with the Naval Police. Six weeks later I was out. I was discharged RNIN (Retention No Longer In The Interest Of the Navy). If my problem was purely a drinking problem I would have been sent into rehab. I had a drug problem because I had been self-medicating with Marijuana and Speed, this would continue for the next 15 years. I was discharged RNIN based on 4 counts of smoking pot. I was not even tested to see if I had any THC in my system. When they searched my room they poked about for less than a minute and left.
Sure I wanted out but that was because the Motor Cycle gave me Bipolar disorder and a whole range of other disorders that I can prove. It was much more cost effective to discharge me and hope I would go away. I told them I used drugs, which was true; it’s called self-medicating. A compulsion to escape the mind your in. Very little effort was made to correct my mental condition and I believe if more effort was made then the past 16 years of my life would not have be like riding a roller coaster of hell.
July 1993 – Oct 1994  Software Training Video
Sales Representative
Promotion and sales of
Computer training videos
Expanding Client Base
Demonstrating to Government bodies & Educational facilities
My wife’s mother lent us the money to buy this business, I did not put enough time into it as went to UNI to do a Batchelor of Business Degree. I was drinking and smoking pot when I should have been working. I lasted about 1 month at UNI. This did not last long. After the supplier cut the dealer margin from 50% to 30% and put all the tapes on consignment at Abacus and Dymocks and that was the end of that
[June] 1993 Married  Yuen …
I met Yuen son after I got discharged and we married after six months. My mother stated to her ‘Thank you for saving my son’s life’ as I was using speed and smoking pot/drinking I was out of control and Yuen pulled me back into line, for a while!
Aug 1994 – Sept 1994  Trade Protection Agency
Sales Representative
Promotion and sales
  Cold Calling
  Telephone Sales
I did not really enjoy this job. I lost interest and quit so I could go and sell copiers.
1995  Dr Baker (GP) 1975 - 1995
I went to see a doctor because of my apathetic mood I was diagnosed with depression and prescribed Zoloft – 1994 50Mg then 100Mg.
(See records)
[April] 1995 …  My Son [F] Born
[F] is a wonderful child who was born deaf with a Sensory Neural Hearing Loss. He is one thing that has kept me going. I truly believe if not for him I would no longer be on this earth. I have given him all I can give. He is now 10 and deserves more from his father, which I guarantee he will now get.
Oct 1994 – April 1996  CDM Australia Pty Ltd
Sales Representative
Expansion of Data Base
Selling to Corporate and Government Bodies
My dad has always sold photocopiers so this seemed the right thing to do. Because I was the youngest they put me in charge of working out how some new interface for a high speed-printing machine. I had something to prove so I hit this hard. I did ok but not good enough. I was once said I had excellent sales ability but just did not put in enough. I was constantly distracted and had to spend a lot of time assisting clients that had already purchased one. They did not perform as well as suggested. My attention drifted and I was taking long lunches or even taking the afternoons of to go for a drink or a smoke. I quit and went to work for the opposition company only to lose my licence for Drink Driving after working there for only one month. This was the end of my sales career.
Oct 1996 – May 1999  Mckechnie Consumer Products
Placement of all local and interstate purchase orders
Tracking and advising customers regarding backorders
Responsible for the day-to-day running of the warehouse
Customer Service
Originally hired as a casual store man after 3 months I got the job of Stock Controller. The handover was lousy as the previous guy was disgruntled. We were changing over computer systems and moving warehouses. The best way to describe this job is organized chaos; it was always flat out. We were constantly short staffed and I had to pick up the slack. I worked overtime all the time without pay. I waited for recognition and a pay rise that never came. I don’t think there was anything wrong with my performance, I guess I just did not fit in to the group who all seemed to be getting recruited from a competitor. I think I was always overlooked for promotion due to my obvious abuse of alcohol. I also believe it was common knowledge I used other drugs.
1998Drug Overdose / Nervous Breakdown
I took far too many of these pills that I had acquired and went on a 36-hour bender. I ended up being rescued by my brother Steven. I was a total wreck and was out for 2 days. It was a week before I resembled a human being. After this I had to go and stay with my parents in Kalgoorlie for 12 weeks. I used this time to improve my fitness and prepare myself for my trip to Singapore.
May 1999 – 2000  I went to live in Singapore
We moved here to try to save the marriage, as Yin and I were not getting on primarily due to my substance abuse. Yin’s mother got us involved in setting up a technology company producing electronic ballasts. There were plenty of Grand delusion’s here; however the so-called genius that invented this ballast disappeared. As I had no access to speed or marijuana and alcohol is fairly expensive in Singapore. I became trapped with no release. I then decided to leave Yuen and take [F] back to Australia to ensure he got some education for his hearing disability. I was a Single Parent and doing well for several months. I was using speed and drinking, in moderation, as I would always consider [F’s] needs first. Yin came back for [F] and my bubble burst. I went right back into full time substance abuse.
2000Next Step Drug & Alcohol Services
I went here in another effort to correct myself. He listened a lot and wrote a lot but not much happened. He moved on the new Psychologist said she would book me in with the Psychiatrist. When I went in they put me through triage again, because I was not using drugs at the time they said they could not help me (See Records.)
2000  Marcelle
Marcelle was a lady I met through [F’s] School. We had a brief relationship that lasted about 4 month’s. I had to tell her that I had a record for willful exposure and was going to court again. I felt it best to tell her rather than keep it in the closet. The relationship ended.
2000  Willful Exposure
I was charged again with 2 counts of willful exposure.
1999 - 2000  Dr Knowles (GP)
I went to see Dr Knowles and was diagnosed with Major Depressive Disorders he prescribed me Effexor XR 75/150/300/450/300mg. I still take 300mg of this each day. It causes the teeth to deteriorate. (See Records).
2001  Drug Overdose
I was on another one of my classic benders this one involved Effexor, Bourbon and Speed had to go & spend the night at Joondalup hospital emergency.
Aug 2001 – Oct 2002  WA Toner Supplies
Sales Representative
This was an absolute nightmare, by far the worst place I have every worked. I truly believed and still do that they were out to use me up and spit me out. Maybe I was paranoid but I had to succeed; I wanted to show everyone that I could be normal and excel in sales. I was up and down like a yoyo. Drinking heavily and using speed. I did excel, outselling all previous sales representatives. However this was a family owned company and it had a history of turning over their sales representatives so they would not have to pay commission. I hung in as long as I could, I was going insane and had to quit.
2001  Government Psychiatrist
I obtained a referral From Dr Knowles to see a government psychiatrist he was extremely rude and very condescending. It took almost a year to see him and I really needed help, the wait was painful as I was extremely depressed. When I finally walked in his office (Nervous & apprehensive) he said, ‘What drugs are you taking’ I told him I was taking speed. He said in an abrupt manner ‘Well I can’t talk to you now because you’re under the influence of drugs.’ I sourced the following statement from the Internet.
Basic Principles
‘When a person with avoidant personality disorder becomes ill, pre-existing shyness and insecurity may intensify. Embarrassment about being scrutinized during physical examination may also contribute to downplay of symptoms and delay in seeking help. The physician needs to steer a middle course between inadvertently cooperating with the patient to minimize complaints and possible missing the diagnosis on the one hand and adopting an overly intrusive approach that may threaten the patient’s sense of privacy and modesty and perhaps contribute to non-compliance on the other. A low-key approach that emphasizes the physician’s friendliness and availability and includes prompt return of phone calls, respect for punctuality at appointments, and periodic reassurance of the physician’s personal interest and commitment will counter the patient’s normal inclination to see himself or herself as unimportant or undeserving of the physician’s attention.’
2002AAA Computer Support
Sales Representative
My brother got me this job and it wasn’t long before I started to dabble in speed again. Major issues developed with my boss in a very short space of time with my boss. I was extremely stressed and slightly manic, I had to quit to save my sanity. Changing medications again did not help as you can not abruptly stop Effexor without serious side effects. I only worked here for 3 months.
2002-2004  Dr Kent (GP)
This time I was diagnosed with bipolar disorder. (There is no history of Bipolar Disorder in our Family) I was concerned about my lack of libido so we switched from Effexor 300mg to Serzone 600Mg per day. This sent me quite loopy as the usual way to change this form of medication is through slow reduction. I had to take 4 days of work, which did not go down well even though I had a medical certificate. We also tried Lithium but it did not seem to be working for me. Dr Kent and I the discussed the possibility of ADD and I obtained a referral to see Dr Clarkson.
2003  Dr Carter (Psychiatrist)
I was here specifically to get an assessment. When my X wife [F] and I arrived the receptionist asked her if she was having another baby (not a good start). Once in his office I showed him a letter that I wrote to the Navy in order to obtain my medical records. He glanced over the letter and said was ‘it sounds like you got kicked out to me’, I had to leave.
2003 – October 15^th 2004  Gardener
I was gardening for a couple of days a week and really enjoying this work. I was being correctly medicated by Dr Clarkson and Dr Black. After Christmas I was planning to find full time work. Unfortunately my job went to another guy in due to the duration I was locked up against my will at Graylands Hospital.
October 15^th 2004 – November 25^th 2004 (TBC)    Graylands
I was sent to Graylands because I had a manic episode. However I was no threat to myself, my brother or anybody else. I asked my brother to drop me off at Joondalup hospital and he did so as the argument was brief and petty.
This is the reason I was incarcerated (Potential damage to relationship. It was the only clause I believe they could legally they could come up with).
I went to the Mental Health Review Board and lost my appeal for release. I was in no condition to be released as my regular medication of 5 years had been abruptly halted without consulting my doctors. It cause’s massive withdrawal symptoms that send electric shocks through my body, and my speech becomes pressured or slurred. It is supposed to be reduced slowly over a period of time. My stay in Graylands was not enjoyable I should never have gone & my regular Doctors should have treated me.
All of the progress that Dr Clarkson and Dr Black had made was undone.
I have included some notes from the appeal.
November 2004 – Now
I went back on my Effexor and back to my private Doctors. Eventually I was correctly medicated enabling me write this lifestyle report as I finally now have my faculties and cognition.
Conclusion
Many job changes, Marriage break up, and there has been many occasion’s where I have gone overboard with drug addiction/substance abuse. It has basically run most of my life. I have always been in total financial insecurity.
The shame and the fact that I couldn’t tell anybody, I had to keep this dark secret that would constantly come back to haunt me. The feeling that I must be upsetting the people I was exposing myself to however was unable to contain myself.
I have let down my Mother and Father my family my ex-wife and most importantly my son, for he has kept me alive. I would have committed suicide if not for him. He was born deaf and has so it has been tough. I owe him a lot more quality time than what he has received.
I am now on the mend and looking forward to the future. I have some wonderful doctors helping me and I believe I will progress rapidly. I may be able to acquire some new friends as most of my old friends have given up on me.
I would like to have my case thoroughly looked at. I believe I am due some compensation for myself, and those who have had to constantly bail me out of trouble but have still stuck by my side. This situation could have been avoided if proper action was taken in the first instance. (Head Injury = Bipolar = a wide range of mental illness).
I believe I have missed out on a large portion of my life and many of my family and friends have suffered. I cannot undo there suffering and I cannot get that time back.” [sic] (original emphasis) (T6, pp 27–36)

The applicant provided the following statement regarding the motorcycle accident of 20 January 1989 in support of his application to the VRB on 12 September 2006 (see paragraph 6 above):
“ I was traveling at 140km per hour and on a slight bend began wobble I went over the handlebars at 120km (approx as I would have lost some speed) landing on my complete left side. I slid for a period my head bouncing fiercely as there was severe damage to my helmet in the left jaw region. This will also explain the damage to my elbow hip and knee! Once I slowed down sufficiently I began to roll, this is why I suffered all of the other superficial injuries. I remember only having movement in my right arm! I removed my helmet. The next thing I can recall is looking up at a crowd of people and stating ‘It’s only a flesh wound!’ I was then given something to suck on?” [sic] (T34)
The applicant also gave oral evidence to the following effect:
·in the motorcycle accident of 20 January 1989 he did lose consciousness, although he must have quickly regained consciousness because he then saw people around him and he made the “Monty Python” comment: “It’s only a flesh wound”;
·he was travelling at 140 kph at the time of the accident – “about as fast as the bike would go”;
·he stated in his police statement of 15 February 1989 (see paragraph 18 above) that he was travelling at about 70 kph at the suggestion of a police officer who “went easy” on him in order to minimise the fine he would receive;
·he was ultimately charged with driving contrary to the conditions of his Learner’s Permit;
·in his police statement he did not refer to a head injury because he had no idea that he had sustained a head injury – he just thought that his helmet had got damaged and scraped down one side;
·it did not then occur to him that he had suffered a head injury – he thought that “the helmet had done its job, and it had”.
The Evidence of Dr Warwick Black
Dr Black said that he is presently Clinical Head of Mental Health Services for Older People, Country Health, South Australia. He said that he had previously practised as a psychiatrist in Perth and that he had treated the applicant from 2004 to the end of 2010.
Dr Black confirmed that he had prepared several reports regarding the applicant’s psychiatric status, the most recent of which was in 2007.
Dr Black’s first report regarding the applicant, which is addressed to Dr Clarkson and is dated 29 April 2004, states as follows:
“ Thank you for referring Charles, whose [sic] a 34 year old divorced man with one child. As you provided a fairly detailed summary I will only recap the important issues as I see them. These include –
1.Charles had a head injury at 2 years of age after he fell out of window [sic]. He spent 2 days in hospital.
2.He had a significant motorcycle injury, I believe at the age of 19 (although your letter says 29). He came off his motorcycle at 140kph. I found it quite extraordinary that neuro-imaging was not done at the time despite the fact that Charles now reports there was a loss of consciousness and his helmet took quite a beating.
3.There appears to have been a significant change in functioning following this latter accident. Charles describes symptoms suggestive of an Attention Deficit Hyperactivity Disorder in primary school, but there appears to have been a significant exacerbation of these symptoms since the accident. Part of this could be explained by depressive symptoms, but I am concerned that there is a more neurological basis for his reported exacerbation of his learning difficulties, poor motivation, and increase in personality clashes.
4.With regard to Charles premorbid personality it would appear that he was a popular boy at school and quite outgoing. He enjoyed theatrics and was part of the Youth Theatre Company, was in all the school plays, but also specialised in being ‘the class clown’.
Despite being a bit of a ratbag, for want of a better term, it would appear that he was quite an endearing young fellow as he suggested that he used to get away with a lot of stuff because the teachers liked him. At one stage he had a desire to become a professional actor, but one day rather impulsively joined the navy, so that he could travel the world. It would appear that his life was fairly much within one standard deviation of the mean life experience, until he had the accident. But, after the accident things have taken a significant turn for the worse.
5.He defines himself as being unquestionably heterosexual, had numerous girlfriends throughout his schooling, but after the accident found himself having sex on four occasions with transvestites, which he finds somewhat perplexing, embarrassing and shameful. This occurred many years ago and he suggests, he would never have imagined himself doing something like this prior to the accident. Charles has also found himself serially exposing himself over the years since, and has been charged for the same. As best as I can tell there appears to have been no propensity to this type of activity before the accident. While it is possible that Charles is looking for an explanation, or something to blame, for his paraphiliac activities, I believe a neurological explanation should be sought. I note that the SPECT scan suggests that there is:
ØMinor right orbitofrontal reduction in uptake
ØHyperactive left putamen
ØTemporal lobes unremarkable
ØMild prominence in left hypothalamic region.
Although the SPECT scan doesn’t strike me as being overly remarkable I wonder if the orbitofrontal/basal ganglia changes could explain the disinhibition/impulsivity. I doubt whether an MRI/CT scan will reveal anything worthwhile, but I believe neuro-psychological testing is definitely worth doing and I will organise this through the Neuro Science Centre at Claremont.
6.There is no clear psychiatric history in the family, although he suggests that all of his family are a bit odd, but he is the worse [sic]. No one has seen a psychiatrist
7.Charles has a history of substance use, which has varied overtime. I think we should monitor his progress with urine drug screens, but it is of note he has tended not to use the more illicit type of amphetamine, while taking 10–12 tablets of Dexamphetamine per day, which admittedly he obtained on the street market.
8.While taking Dexamphetamine he noticed a significant improvement in his mood, which has not been achievable on anti-depressants alone. He suggests that he was able to think more clearly, was more efficient, and his memory was better. He also reports that he felt calmer.
I did not feel that there was any evidence for a Bipolar Disorder or psychosis, and as there was no family history of schizophrenia or other conditions that might make it unwise to prescribe Dexamphetamine I have decided to give Charles a trial of Dexamphetamine commencing at 10mg tds.
…” (T38)
As indicated at the end of para 5 of his above report, Dr Black subsequently referred the applicant for neuropsychological assessment and, on 7 October 2004, Dr Claudia Hoeltje, Clinical Psychologist, Neurosciences Unit, North Metropolitan Health Service, reported to Dr Black as follows:
“ Thank you for referring the above 34 year-old gentleman for neuropsychological assessment. I understand that Charles may have sustained a head injury in a motorcycle accident at the age of 19, and possibly as well as a young child when he fell out of a window. Apparently, his behaviour has changed substantially since the motorcycle accident, including impulsivity, drug abuse and paraphilia. You mention the improvement in mood since Charles has been put on prescription Dexamphetamines, but ask for a neuropsychological assessment to clarify his overall cognitive functioning.
I saw Charles on 6 October 2004. As he arrived about one hour late (he got lost on his way), testing was shorter than usual. Charles presented as a casually dressed man who had a marked tendency towards verbosity and rambling speech, and who at length spoke about his future aspirations of acting, making a film and writing a book about ADHD – his ‘life story’. He stated freely all points covered in your letters [sic], from early childhood to his entry into the navy, drug abuse and tendency to expose himself. He also stated being convinced that he had sustained a right temporal lobe damage in his accident and that the navy had discharged him wrongly and done away with his medical records. He stated that after the accident he had been wrongly diagnosed with depression and now was finally on the right track on Dexamphetamines. He felt however, that he needed more tablets than what is presently and under TGA laws prescribed, and towards the end of assessment admitted having taken 8 (2x4) tablets before arriving for his assessment. He commented that he felt like he could do anything, he denied any depression, and his mood suggested some unrealistic euphoria.
Charles maintained his effort well over the 2 hour assessment, although he remained rather tense, with ‘driven’ behaviour patterns (like drumming on the table, talking loudly and very hastily, making jokes, asking at times inappropriate questions during assessment, often commenting on his test performance).
RESULTS
On the few sub tests of intellectual functioning administered, his performance suggests average verbal concept formation and average visuo-spatial sequential thinking style, high average constructional skills and superior number recall (tapping into attentional processes). Of note is though [sic] a large difference between his reliable recall forward (8 digits) and backwards (4 digits). On the latter, his performance was characterised by a pass fail pattern.
Tests of memory function failed to find any abnormalities on quantitative grounds. Thus, immediate and delayed recall of simple visual designs tested at the high average range. New verbal learning as assessed at the superior range with regards to total recall over five trials. In addition, he manifested good retention of the learned material following an interference test. Similarly, verbal fluency tested at the superior range for letter fluency and very superior range for category fluency.
Executive functions were also assessed within normal limits on quantitative grounds with respect to design fluency (high average) – this test involves (at the functional level) visual attention, motor speed, visuo-perceptual skills, constructional skills, as well as (at the executive level) initiation of problem solving behaviour, fluency in generating visual patterns, creativity in drawing multiple different designs, simultaneously processing the drawing of designs while observing rules and monitoring own performance, inhibiting repeating previously drawn designs, non-verbal creativity, as well as cognitive switching ability), trials (high average to superior) – a task of visual attention and scanning, motor speed, numerical processing and letter, inhibition responses to distracting stimuli (letters, numbers) and higher level skill of multitasking, simultaneous processing, divided attention, flexibility of thinking and cognitive shifting, as well as a switching task in verbal fluency (superior). His performance on a sub test of verbal concept formation was indicative of a low-level/concrete approach.
On a task of visuo-spatial organisation his copy of this complex visual material was very disorganised.
On a task tapping specifically attentional functions, his performance fell at the superior range in terms of accuracy and speed of processing.
A test of effort suggests that Charles gave his best during assessment.
Importantly however, on qualitative grounds a number of features were observed:
o   On speeded tasks Charles had a pronounced tendency to make errors, both set-losses (rule breaks) and repetitions. This tendency was observed in particular on tests of executive functions (visual scanning and design fluency) on which, despite a superior performance on quantitative grounds, his error score indicated an extremely poor performance, only observed in 2% of the population at large.
o   He showed a number of oddities during assessment. For example, during test instructions of design fluency he summed up the instructions by saying ‘basically: don’t lift your pencil while you are drawing!’ but then proceeded during the speeded task to lift his pencil after each stroke which was time consuming and unusual. He did this for about 30 seconds after which he reverted to ‘normal’ drawing. Also somewhat odd was the fact that he proceeded to draw his designs not along the designated squares and as indicated but along the periphery of the paper.
o   Another oddity that may signify some perseverative tendency was his recall on a 15-word list. As he recalled the words he mentioned ‘farmer’ (one of the words), but a bit later added ‘farm – was there a farm …?’, and then on each of the subsequent recalls would say ‘famer – farm’. Again, repetitions like these, if scored by the book would give him an impaired score on this test, indicative of flawed monitoring processes.
SUMMARY
In summary, on quantitative grounds Charles’ test profile suggests particular strengths (superior digit recall, new verbal learning, verbal fluency and attentional switching/cognitive flexibility), the remainder being around the average to high average range.
However, on qualitative grounds the profile suggests erratic, error-prone performance on timed tests that are challenging, poor self-monitoring, and some perseverations/oddities.
I am concerned about the amount of Dexamphetamine Charles is consuming. As you wrote, it would have been more helpful to asses Charles without the medication. Personally, I do not exclude the possibility that he is conveniently feeding a habit. His verbosity, unrealistic euphoria (given his life circumstances at present), pressured speech/performance, and some of his statements which did not make much sense, together with qualitative observations (see above) give the profile and his presentation a psychiatric flavour. Given that he can remember his accident well (both just before he crashed, the crash itself and lying on the street afterwards, talking to people who came running, going to hospital etc) it is unlikely that he sustained a significant head injury.
…” (original emphasis) (T10)
Dr Black provided a report, dated 31 August 2005, regarding the applicant to the DVA at its request following the applicant’s claim on 18 May 2005 (see paragraph 2 above). In that report Dr Black commenced his summary of the applicant’s history as follows:
“ PART ONE: PSYCHIATRIC HISTORY
1.Specific details of war service and events that are related to the claimed psychiatric disorder(s):
I first assessed Mr Binns on the 29 April 2004. He had been referred to me by Dr Clarkson, who described him as a ‘normal young man’, prior to his enlistment in the Navy in his late teens.
The history provided suggested that he had a motor cycle accident, during the period he was employed by the Navy. It was suggested that Mr Binns had been unconscious for ‘some time’, and his helmet suffered significant damage on the left side. It was suggested that there was significant change in behaviour and personality following this accident. In addition, Mr Binns found it more difficult and was less inclined to ‘learn or study anymore’. He also let his physical fitness deteriorate. Most notably, disinhibited behaviour developed, including a tendency to expose himself. He had been charged for this.
…”
Dr Black’s report concludes as follows:
“ PART FIVE: FINAL DIAGNOSTIC ASSESSMENT AND REPORT SUMMARY
1.Final diagnosis or diagnoses and a differential diagnoses [sic] as is appropriate (as per DSM-IV)
Multiple Diagnoses are appropriate. These have either occurred concurrently, or for specific periods of time.
vPersonality Change Due to Head Trauma, disinhibited type (293.89)
vPrimarily Alcohol Abuse (305.00) & Cannabis Abuse (305.20)
vMood Disorder – Not Otherwise Specified (311) – Differential Diagnoses, include..
1)   Mood Disorder due to Head Trauma, with Depressive Features, including Major Depressive-Like Episodes (298.83)
2)   Substance Induced (alcohol/marijuana) Mood Disorder with Depressive Features (298.83) [Note: Primarily self medication, but these substances exacerbate depressive disorders]
3)   Major Depressive Disorder, severe without psychotic features, recurrent, without full interepisode recovery (296.33)
vSubstance-Induced (ie high dose dexamphetamine & marijuana) Mood Disorder, with Manic Features, with onset during intoxication
vOther Male Sexual Dysfunction due to Head Trauma (608.90)
1)   Transvestic Fetishism, with gender dysphoria (302.30)
2)   Exhibitionism (302.4)
[Note: While these paraphilias are more likely to occur when intoxicated or depressed, the preoccupation to carry out these behaviours appears to be more pervasive than this (ie even when Mr Binns mood was well controlled, he experienced the urges to perform these acts, but had a greater capacity to resist the urges]
2.Documentation of symptoms and signs as applicable to diagnostic criteria of DSM-IV for any psychiatric diagnosis related to war service
v These are outlined in the text above, and include:
1)Disinhibited sexual behaviour
2)Other changes in personality
3)Reduced self care (dishevelled appearance)
4)Full range of depressive symptoms, including suicidal ideation
5)Range of manic-symptoms (ie elevated mood, grandiosity, lacked insight about his symptoms etc)
3.Opinion on the causal relationship between the psychiatric disorder(s) and war service, ie is the psychiatric disorder…
(a)    related to war service
(b)    attributable to an event either before or after service
(c)    attributable to an event before service but service aggravated the disorder or caused the symptom manifestation
v Having reviewed general practice notes, Naval medical records, and hospital medical records the following issues appear to be evident:
1)There was no report of psychiatric illness, disinhibited behaviour, personality disturbance, or substance abuse by the general practitioner, Naval notes, Mr Binns, or the family, prior to the head injury.
2)There has been a history of psychiatric illness, disinhibited behaviour, personality disturbance, and substance abuse as reported by the general practitioner, Naval notes, Mr Binns and the family, since the head injury.
3)Mr Binns has consistently maintained, and it has been documented in the aforementioned case notes (ie General Practice, Naval and Hospital case notes), that his difficulties commenced after and in close proximity to the head injury.
4)Mr Binns made multiple requests to be discharged from the Navy, because he was not coping in this environment, and while he indicated to Navy personnel that he had a long history of substance abuse, at the time of trying to get himself discharged, there is no evidence that this was the case. Furthermore, I understand that another seaman reported to Navy personnel that Mr Binns was using drugs, but to the best of my knowledge no drug screening was performed by the Navy to clarify this issue.
I have been unable to find any evidence that Mr Binns abused illicit substances or alcohol by reviewing any of the available documentation.
Alternative documentation from Joondalup Hospital, dated July 1999, indicates that Mr Binns reported that he had started using speed and other drugs in the Navy and that this contributed to his discharge. He reported that he had asked someone ‘to dob him in’ for marijuana use, and that he went AWOL, and spent 21 days in the brig prior to discharge in 1992.
My interpretation of these varied documentations is that Mr Binns may well have provided false information to get of the Navy, but once discharged it would appear that he saw no need to conceal his actions. The Joondalup hospital notes were written seven years after being discharged from the Navy and Mr Binns appears to have maintained this account about how he procured his discharge for at least the past six years, and many of his other claims from prior to the time of discharge (ie thirteen years ago). It is my suspicion that enforcing completion of Mr Binns term of service, was considered to be ‘not the [sic] interest of the Navy’ and as such he was discharged. Naval records indicate:
‘His bouts of exhibition [sic]’, which ‘commenced after motor vehicle accident’ were characterised by ‘almost a self gratification model’. He was often exposing himself up to eight times a day.
It was suggested that the prognosis was poor, and discharge was recommended. The assessing psychologist also suggested that ‘a deterrent to dissuade others, who may perceive admitted drug use as a means of securing a discharge, should be considered’.
5)There appears to be a significant shift in the opinions of Naval personnel, about Mr Binns personality structure between the time he applied to enlist and the time of his discharge. One has to consider whether this suggests inadequate assessment at the time of admission to the Navy or there had been a change in personality, behaviour and general functioning as Mr Binns and others have claimed.
6)At enlistment, it was documented that Mr Binns:
a)   Vocational preferences were socially oriented
b)   Was confident, pleasant mannered, and related openly and freely
c)   Had the maturity to settle into Navy life
d)   Had used cannabis on only one occasion
ØPrior to Discharge, it was documented that Mr Binns:
a)   Was ‘generally naïve’ and ‘a bit of a loner’
b)   Was impulsive
c)   Was an arrogant and overbearing young man with an inflated estimate of his own ability
d)   Had a conviction that others were hostile towards him, and that in turn he was hostile toward the Navy
e)   Had a personality profile, on psychometric testing, suggestive of an Antisocial Personality Disorder
Other post-Naval documentation has suggested that Mr Binns has:
Ø been unable able [sic] to show any emotion since the motorcycle accident
Ø not been able to maintain any friends
Ø narcissistic personality traits
Ø An inability to manage his money
A plausible, integrated explanation for Mr Binns difficulties:
Traumatic brain injury (TBI) is often associated with lesions to the orbitofrontal, anterior and inferior temporal cortices, as well as the parieto-occipital cortices.
The available evidence suggests that disinhibition syndromes following TBI most commonly occur when Orbitofrontal lesions occur in association with lesions of the Temporal Lobes.
Mr Binns underwent SPECT imaging (ie a functional image of the brain), and asked Nuclear Physicians, Drs Joe Cardaci and Geoff Bower, to review the images.
Some of the key findings included hypofunction of the:
1)   Orbitofrontal cortices, bilaterally (L>R)
2)   Left, superior, temporal gyrus, anteriorly
3)   Left, posterior parieto-occipital areas, inferiorly
4)   Right, posterior parieto-occipital areas, superiorly
They report that they were in agreement about the following issues:
1)   The focal areas of hypoperfusion seen on the scan are in a distribution which is suggestive of trauma, but not necessarily diagnostic, as orbitofrontal perfusion defects are also seen in depression, bipolar disorder etc and are not specific for trauma.
2)   If there is a temporal history of trauma, one may infer (but it is difficult to prove beyond doubt) that the defects are likely to represent focal areas of cortical dysfunction due to old trauma.
3)   Bilateral orbitofrontal and anterior temporal lobe hypoperfusion is a pattern which is seen in major depression, and this could account for some, but not all, of the findings on Mr Binns’ scan.
4)   Prospective studies of brain SPECT performed relatively early after traumatic brain injury have show [sic] that a normal scan at an early stage post trauma (eg 1-2 mths) indicates an excellent prognosis for recovery, whereas an abnormal SPECT scan is associated with a higher incidence of morbidity. If the changes, represent traumatic brain injury, that [sic] fact that Mr Binns scans are abnormal, at this late stage, suggests that a more protracted pathology exists.
5)   There are number [sic] of studies which have demonstrated a much higher rate of detection of brain blood flow abnormalities in patients with a history of brain trauma, compared to anatomic studies with CT and MRI. The suggestion is that when there is neuronal disruption or injury to long tracts, without focal cortical contusion or haemorrhage, anatomic imaging can be normal whereas functional assessment of brain function, with SPECT, is able to demonstrate these lesions. It has been demonstrated that there is a high incidence of focal cortical brain perfusion defects in patients with a history of head injury, which is much higher than in a normal control population. Unfortunately, there is nothing to measure the SPECT results against, ie there is no pathologic/autopsy correlation to confirm that the brain SPECT defects are indeed due to brain injury.
6)   In a patient with a history of trauma, a normal or near normal scan is of most benefit as this indicates there hasn’t been major cortical injury/dysfunction and that any symptoms are more likely to be functional rather than organic.
It would have been helpful if two SPECT scans had been performed in relatively close proximity, with one being performed at rest and the other being performed after completing a task that results in cortical activation. The pattern of changes between the two tests can firm up the diagnosis (ie if Orbitofrontal & Temporal hypoperfusion remains fixed it increases the likelihood that the defects are due to trauma and not due to a functional illness).
The Role of the Orbitofrontal Cortex
The Orbitofrontal Cortex (OFC) is critical in the regulation of a wide range of functions related to emotional processing, and has been implicated to have a role in a variety of neuropsychiatric conditions, including those related to:
Regulation of mood (depression and mania) and anxiety
1)   Satiety and reinforcement (eg satisfying hunger, reinforcement of ‘pleasurable activities’, such as substance abuse, other addictive behaviours etc)
2)   Impaired recognition of emotions and lack of empathy (eg antisocial behaviour, Asperger’s Syndrome etc)
Patients with OFC dysfunction tend to:
1)   not only be hypersensitive to immediate reward, but hyposensitive to immediate punishment
2)   have an impaired ability to balance future risks or punishment against immediate rewards or punishment
As such, patients with OFC dysfunction may exhibit:
1)   coarse, tactless, and unempathic behaviour
2)   lack of regard for social restraints
3)   impulsive and antisocial behaviour
4)   excessive pleasure-seeking behaviour (especially sexual behaviour)
In more detail, when the OFC is functioning properly a person should be able to interpret other people’s emotional signals, interpret feedback about their own behaviour, and modify further behavioural responses and interpersonal interactions, accordingly. When the OFC is not functioning properly the patient may exhibit an impairment in emotional, facial and vocal identification, and as such they may have substantial difficulties in identifying the emotional experience that others are experiencing (ie based on emotional cues). As such, they may lack empathy for others. The term ‘pseudopsychopathic’ is often used to describe these difficulties, although the apparent disregard for social rules is typically not accompanied by the intentional viciousness of an individual with a true antisocial personality disorder.
The OFC is involved in satiety, reinforcement, and the modulation of brain-reward mechanisms. It is believed that the OFC plays an active role in impulsive and compulsive behaviours. Furthermore, it is believed that individuals with OFC dysfunction experience impulses when exposed to cues that are related to behaviours that result in activation of intrinsic mechanisms of reward, and fail to stop behaviours once they have started.
Dopaminergic modulation of this region mediates initiation of a range of incentive motivated behaviours for naturally occurring rewards, such as food and sex, but also those related to habit forming drug use, other reinforcers, and the initiation of behaviours aimed at gaining these reinforcers.
OFC functions may be disrupted by even subtle processes (eg alterations in neurochemical functioning), which modulate its ability to perform its usual functions.
Summary
Mr Binns presentation is a challenging one in that current assessment tools may lack the sensitivity to definitively identify the extent of any brain trauma, but the temporal sequence of events and the types of difficulties he has experienced can be given a plausible and unifying explanation, as outlined above.
4.Opinion on prognosis (including course, progression and intermittent nature) of disorder and related disability (including any benefits from rehabilitation)
On the balance of probabilities Mr Binns will require life long psychiatric treatment.
Mr Binns is currently experiencing a considerable side effect burden, including significant weight gain and a prominent tremor. The tremor is severe enough that it would be noticeable by most people. The Olanzapine is likely to contribute to weight gain and Lithium to both of these problems.
If Mr Binns were to seek treatment under my care, I would consider the following:
1)   Reduce and subsequently cease the Lithium
2)   Increase the dose of Lamotrigine (see below)
3)   Continue the Olanzapine for the time being, but consider an alternative atypical antipsychotic with mood stabilising properties, which is less likely to cause weight gain (eg Aripiprazole).
4)   Consider the use of a stimulant (which I have been reluctant to do in the past, but would be more willing to consider having reviewed the material provided), given that the only manic episode Mr Binns has experienced occurred in the context of polysubstance abuse. Obviously, the use of such a medication (and any substance abuse) would need to be closely monitored.
In the event that Mr Binns’ application is successful, he may be able to access treatment options that he is unable to afford at present (ie an increased dose of Lamotrigine, and a slow release stimulant like Ritalin LA, or preferably Concerta, which are different preparations of methylphenidate).
…” (original emphasis) (T11, pp 48, 73–78)

Following the respondent’s decision of 18 October 2005 disallowing the applicant’s claim in respect of bipolar disorder, attention deficit disorder, and anxiety (see paragraphs 2–3 above), Dr Black wrote a letter dated 9 March 2006, addressed to a senior delegate of the respondent, as follows:
“ Mr Binns has presented a document entitled ‘Reasons for Decision’, which outlines why his claim was dismissed. The document was dated the 18^th of October, 2005 and was prepared by Mr Steve Peacock, delegate of the Repatriation Commission.
There are a number of issues that are worthy of consideration. Firstly, you will have at hand my comprehensive report, which outlines the various issues which I believe are important. As there may be some confusion about information contained in that report, or information provided by Mr Binns, I have written this letter in the hope that such matters can be clarified.
As you will note from my report and from your own records, it would appear that there was a distinct change in personality and functioning during the course of Mr Binns’ term of service. From my review of the available Navy records, it would appear that this change coincided with his motor vehicle accident. I note that one of the reasons for dismissing Mr Binns’ claim was that - ‘No head injury was found or recorded as a result of the hospital admittance examination, or during his stay in hospital. No head injury was found during any of his service medicals carried out during the remainder of his Naval career (three years)’. I suspect that no comprehensive examination for a head injury was performed. The fact that this examination , or any other examination was not performed does not exclude the possibility that a problem exists. As you might appreciate surgeons are not always the best individuals to assess a head injury, if it falls short of fractures skull [sic] or subdural haematoma. I suspect that there [sic] no neuropsychological functioning was performed during the hospital admission, and it would appear that little consideration was given to the possibility of head injury at all. With regard to examinations performed during his naval career, I would be interested to know whether any neuropsychological assessment was undertaken. Furthermore, some medical practitioners and insurers have denied the presence of a significant neurological deficit even in the presence of marked neuropsychological deficiencies being observed in repeated neuropsychological testing. In my opinion, to suggest that an illness is not present at the time of initial assessment is faulty logic.
I would be grateful if you could forward a copies [sic] of neuropsychological assessments that were performed by the Navy, so that these can be reviewed. I would be happy to provide an updated opinion, based on these assessments.
Bipolar Disorder has a neurological basis. Various forms of assessment have established this. For example, the development of bipolar-like disorders has been shown to result from head trauma, cerebrovascular accidents, etc. Furthermore, neuropsychological assessment and functional imaging have identified abnormalities associated with this disorder. Thus, developing a bipolar disorder after head injury is not beyond the realms of possibility. In the language of DSM-IV this would be referred to as a ‘Mood Disorder due to a General Medication Condition’, which in this instance would be ‘head trauma’. It is of note that there is no family history of Bipolar Disorder. Furthermore, substance abuse is frequently associated with mental illness and head trauma. The bipolar-like disorder that Mr Binns developed appears to have occurred in the context of using marijuana in conjunction with Dexamphetamine. In the language of DSM-IV this would be referred to as a ‘Substance Induced Mood Disorder’.
The controversies about stimulants are frequently over-stated, and if there is any confusion about this, I would refer you to the National Health and Medical Research Council’s document on this subject. In my experience, the combination of Dexamphetamine and marijuana is a particularly potent one, which can lead to manic-like presentations. Unfortunately, Mr Binns was attempting to self-medicate, despite warnings that he should avoid marijuana. Thus, it is possible that the combination of head trauma, associated mental illness, and self-medication with marijuana contributed to his manic presentation.
For the sake of clarity, the sequence of events leading to Charles’ episode of mania (preceded by depression) may be Head Injury → Substance Abuse → Substance Abuse ± Head Injury → Mania.
With regard to comments about Mr Binns’ commencement of self-exposure being due to the injury of his elbow, I believe that there are a number of things worth considering. Firstly, I have never seen a patient who has commenced such behaviour after an elbow injury. I would be very surprised if any medical practitioner working for the Navy has seen such a phenomenon. It is worth considering, as Mr Binns states, that he wanted to get out of the Navy, and used whatever mechanism he could to achieve his aim. I suspect that under the circumstances, the Navy were not unhappy that he could be discharged.
Similarly, issues pertaining to substance abuse of alcohol and cocaine need to be understood in the context of Mr Binns wanting to be discharged from the Navy. Having comprehensively reviewed Mr Binns’ medical records from his birth into adulthood, there was no evidence of substance abuse until after the accident. The Navy’s own medical records support this.
Mr Binns has been on a desperate search to find an explanation for the deterioration in his functioning. During the course of this determined exploration, he has come to various conclusions. It would appear that some of the reasons for dismissing his claim are based on his views about his illness. I believe that this is an unfair way of assessment, as Mr Binns is not a medical practitioner, who can put the broader issues into context.
With regard to the concept of an Attention Deficit Disorder, this is a term that Mr Binns uses to refer to his condition, and I believe it would be fair to say that he has difficulties of an attentional nature. By definition, according to DSM IV, the attention deficit is supposed to be apparent by the age of 7. Regardless of whether there were some difficulties with attention in childhood, or adolescence, the key issue is whether there was deterioration in cognitive functioning after the accident. The available evidence would suggest that this is the case. The Naval medical records support this conclusion.
Given the issues outlined above, I believe the key issues are:
1.The fact that adequate assessments of head injury were not performed does not preclude the possibility that a head injury occurred.
2.There appears to be a temporal relationship between changes in Mr Binns’ personality and functioning following the motor vehicle accident.
3.Mr Binns’ cognitive difficulties, regardless of what one wants to call them, appear to have become evident following the accident. This was not a concern at the time of enlistment, but by the time of discharge from his Naval service, considerable concern was raised. One has to ask why the significant shift in the Navy’s assessment took place. One has to consider whether the Navy’s ability to assess individual’s [sic] is seriously flawed, because wither [sic] the initial assessment was grossly inaccurate, the final assessment was grossly inaccurate, or something occurred in between these assessments that lead to a significant change in Charles’ functioning. Once again, the review of Naval records would suggest that there was a temporal relationship between the accident and the change in function.
4.Head injury can have a variety of sequelae, including changes in cognition functioning, personality, and mood etc. In the absence of adequate treatment, substance abuse is frequent. The change in functioning is not consistent with a simple mood disorder.
5.I believe that Mr Binns’ explanation for the development of various difficulties should not be given precedence over the medical reports, which summarise the issues at hand.
As you will be aware, Mr Binns is making a new application. I hope this information has been of assistance to you.
…” (original emphasis) (T17)
In response to a request from the Military Rehabilitation and Compensation Commission (“MRCC”), Dr Black provided a report, dated 9 April 2007, in relation to a claim by the applicant for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) in respect of head injury, left elbow injury, and left knee injury claimed by him to have been sustained by him in the abovementioned motorcycle accident of 20 January 1989. In that report Dr Black responded to questions asked of him by the MRCC as follows (relevantly):
“ PART 1 – DIAGNOSIS
1.From what condition(s) does Mr Binns suffer? Please specify the exact diagnosis using a ICD-10 or DSM-IV codes and having regard to the definitions above, would you please classify each condition as a ‘stand-alone condition’, a ‘sequela’, ‘a secondary condition’ or a ‘symptom’.
Please describe the symptoms of each condition.
During period of service
1.   Personality Change Due to a General Medical Condition (cerebral trauma), disinhibited type – (stand-alone condition)
2.   Substance Abuse (predominantly marijuana and alcohol, but also amphetamines) – (a secondary condition)
…
Based on the many interviews that I’ve had with Mr Binns, and based on the review of medical documentation prior to his admission to the Navy, and the documentation provided by the Navy, it would appear that there was a change in Mr Binns’ ‘personality’, which does not appear to have been driven by a psychiatric illness, or substance abuse. Although, I suspect that Mr Binns was depressed during his period of service, both of the psychiatrists, who assessed him did not make a formal psychiatric diagnosis of a mood disorder or other psychiatric illness to explain the change in behaviour.
Furthermore, my clinical practice is primarily neuropsychiatric a [sic] nature. I treat a wide range of conditions, including patients with head injuries, treatment resistant psychiatric illness, disorders with psychiatric symptoms secondary to diseases, which cause cerebral dysfunction, and psychiatric illnesses that tend to manifest in old age (eg dementia, psychiatric illness that manifests after cerebrovascular disease etc). In addition, I treat many patients with substance abuse disorders, and in my experience the only patients who manifest the pervasive types of difficulties that Mr Binns describes are those who have sustained cerebral damage thorough excessive, prolonged alcohol abuse, or have sustained anoxic cerebral damage following drug overdoses sufficient to warrant resuscitation.
Many of the symptoms that Mr Binns describes and/or exhibits are consistent with dysfunction of the Orbitofrontal Cortex.
…
Following period of Service
1.   Mood disorder due to cerebral trauma, with major depressive-like symptoms – (stand-alone condition)
2.   Anxiety Disorder due to cerebral trauma with generalised anxiety.
3.   Substance induced mood disorder, with manic features, with onset during intoxication. – (a secondary condition)
…
2.    Does Mr Binns continue to suffer from the condition(s)?
a)Personality change due to cerebral trauma – Yes
b)Substance Abuse – marijuana abuse has ceased, but he continues to consume unhealthy levels of alcohol, which appears to be having an adverse effect on his liver.
c)Mood disorders – with appropriate treatment, and avoidance of marijuana, Mr Binns has not had a recurrence of a manic-like illness. His depressive symptoms are also relatively well controlled at present.
Mr Binns will require lifelong pharmacological treatment to sustain this modest sense of well-being.
3.When do you anticipate the condition could resolve and when should a review of the condition(s) take place or is it a permanent condition?
The effects of the cerebral trauma will never resolve, and lifelong treatment will be required to limit the likelihood of further, antisocial, impulsive behaviour. It is unlikely that treatment will have a major impact on his ability to interact in social settings. This has a major impact on his ability to establish a social network, share accommodation, and establish healthy relationships.
The other difficulties described above will also require lifelong treatment.
He will require lifelong psychiatric treatment (ie psychiatric consultations). He may also benefit from psychological interventions, but he has been unable to afford this.
PART 2 – CAUSATION
4.Was the condition(s) diagnosed at question 1 caused by some feature or aspect of Mr Binns’ military employment?
…
Mr Binns’ cerebral trauma appears to have resulted from his motorcycle accident, which occurred on his way to work. …
Although, his substance abuse could be considered to be a secondary manifestation of his primary condition, the evidence would suggest that this commenced during his term of service. It has been suggested that ‘boredom’, while performing certain menial roles within the Navy may have contributed to his alcohol abuse. Thus, it could be considered that his alcohol abuse commenced during his Naval service, and that some aspects of his naval service (ie in addition to the cerebral trauma) contributed to this. Having said this, I think that the likelihood is that he would have developed a substance abuse disorder would have been much lower [sic], if it had not been for the cerebral trauma, the effects of which he was attempting to self-medicate.
…” (T40, pp 201, 203, 207, 208, 209)
In his oral evidence Dr Black confirmed that he had formed the opinion that the applicant had suffered a traumatic brain injury. He added that people who have suffered a traumatic brain injury commonly present with psychological symptoms.
Dr Black also confirmed that he had formed the opinion that the applicant had suffered that traumatic brain injury in the motorcycle accident of 20 January 1989. He cited an article by Erin Biglar entitled “The lesion(s) in traumatic brain injury: implications for clinical neuropsychology”, published in Archives of Clinical Neuropsychology 16 (2001) 95–131 (Exhibit A3), which he said “highlights the physics involved” in an accident such as the applicant’s motorcycle accident of 20 January 1989. He described that accident as involving the applicant, weighing about 100 kgs, travelling at 140 kph, “going over the handlebars” of the motorcycle, “flying through the air” and landing with sufficient force to severely fracture his arm, resulting in substantial “brain shake”. He added that the fact that no abnormality is observed on a MRI or CT scan does not necessarily indicate that no significant brain damage has occurred.
The evidence of Dr David Rosen
Dr Rosen, Consultant Neurologist, confirmed that he had assessed the applicant on 18 December 2012 at the request of the DVA and that he had prepared a report, dated 11 January 2013, on the basis of that assessment.
In his report of 11 January 2013 Dr Rosen reviewed in detail the T Documents which had been provided to him by the DVA, referred to the applicant’s employment history, and continued:
“ …
Onset of Symptoms and/or Sequence of Events:
On 19 [sic] January 1989 Mr Binns was involved in a single vehicle motorcycle accident. He recalled driving down the Mitchell Highway [sic] at about 6 am. He recalled that the weather was fine. He was wearing a helmet and the leather jacket was ‘… in the bag on my back’. Mr Binns told me that he was doing about 140kph at the time of the accident. He went into a slight bend and got the ‘speed wobbles’. Mr Binns told me that he was not an accomplished driver, in fact was a learner driver and driving illegally as he was unsupervised. (Mr Binns alleged that the Police later disregarded his claimed actual speed and recorded 72 kph in the charge sheet and subsequently charged him with the lesser offence of ‘driving out of class’ not with speeding or negligent driving despite his admission to the Police to the contrary.)
Mr Binns recalled going over the handlebars and flying through the air after the speed wobbles. He recalled sliding along the freeway after he hit the ground and recalled ‘waking up’ on the side of the road. His next memory after flying through the air is that of a crowd of people standing around him. He told me that he sustained a period of loss of awareness. He told me that he recalled that the people were looking at him. He told me that he was in ‘severe shock’. He told me that he was unable to move anything except his right arm that he used to ‘rip the helmet off’ and threw it away. He recalled ‘looking up to the crowd and laughing saying that it was only a flesh wound’. Mr Binns was referring to the injured left elbow that had become pinned up behind the bag on his back. He recalled that the bag was cut loose from his back and only then did he see the blood flowing from the arm wounds. (Mr Binns immediately corrected himself and told me that he didn’t see any blood flowing and only assumed that he saw it and subsequently then told [sic] ‘Oh I really don’t know’. Aside from this Mr Binns’ recollection of the accident seems very detailed.)
Initial/Early Treatment Received
Mr Binns recalled being lifted into the ambulance after being given ‘a morphine stick to suck on’ and his pain settled. He does not recall the ambulance journey or arriving in the emergency department at the Royal Perth Hospital. (Morphine can have this effect).
His next recall is a couple of hours later seeing corridor lights flashing by as he was wheeled to theatre for surgery on the elbow.
Mr Binns recalled at some point during his time in the emergency department that he swore at his parents who had arrived in the emergency department.
Mr Binns told me that he sustained no external injury to the head. He was wearing a full-face helmet that was badly grazed or scratched from the [sic] left from chin to ear presumably by the effects of sliding along the bitumen. Mr Binns told me that he couldn’t recall if the helmet was caved in but he didn’t think so.
Mr Binns next recollection is of being told that it was now three days after the accident, that he had had two operations. Mr Binns told me that he didn’t recall much of the preceding two days.
Mr Binns clearly recalled pain in the elbow and the leg at that time. He also recalled that he had nausea and vomiting and tingling in the left hand but can’t recall which fingers were affected. Mr Binns told me that the tingling of the hand and the nausea and the fact that he had sworn at his parents were all (in retrospect) signs of his head injury. When we discussed this he also agreed that these symptoms could also be caused by other disorders such as drug side effects and as a result of the elbow trauma affecting the ulnar nerve.
Mr Binns told me his elbow injury recovered to 99% of function and that his recovery was due to ‘heterotopic ossification’.
He recalled that he was constipated during his hospital stay and that he required therapy with suppositories. (This too could be a side effect from medications.)
Mr Binns denied any other symptoms that he could recall during the hospital stay.
His listed injuries were a left olecranon fracture (internal fixation), abrasions to the left knee (he has a residual scar here) and to the forearms and trunk.
After two weeks in the Royal Perth Hospital he then spent a week in the Garden Island Navy Hospital. Mr Binns told me that he couldn’t recall any specific symptoms apart from pain in the elbow during this time.
Mr Binns then spent a further ten weeks at home on sick leave with his parents in Duncraig. He does not recall any specific symptoms during this time. He does not recall any specific details of this period.
On direct questioning Mr Binns denied any bad headaches, sleep disturbance, problems with his memory or concentration in the immediate post-injury period. Mr Binns told me that his life went on as normal and that he thought he had ‘stuffed’ his body up but did not at the time have concerns about any brain damage (The issue of brain damage was not raised until 2004 when he consulted Drs Clarkson and Black).
Mr Binns told me that he returned at HMAS Garden Island doing light duties in administration. He told me that ‘things went wrong here’ after he was picked on by a leading seaman and that he was not suited to administration work. Mr Binns told me that his drinking behaviour had changed after the accident and that he drank more alcohol.
History of Onset of Abnormal Behaviour:
Mr Binns told me that he began to develop exhibitionist behaviour a few months after the injury. He denied any of this kind of behaviour before the accident and denied being intoxicated during this behaviour at the start. Later in years to come he would perform acts of exhibitionism when intoxicated and alcohol would make him more reckless. Over time Mr Binns exhibitionist behaviour became so frequent that he thought that he wouldn’t get caught or that if he did, he did not care. He told me her [sic] performed ‘thousands’ of acts of exhibitionism to the point of obsession.
Drug and Alcohol Onset History:
Mr Binns told me that his alcohol consumption had begun to increase before the accident. He felt that he was drinking responsibly before the accident. However, after the accident his drinking increased dramatically. He told me that he would be drunk three or four times a week. He told me that he would drink 15 – 20 standard drinks at a time. He denied any alcoholic blackouts but did admit to episodes of memory loss after drinking. He denied symptoms of alcohol withdrawal or alcohol physical dependence such as craving alcohol. He told me that he had a DUI charge at the age 25. He told me that for years this pattern of frequent binge drinking stayed fairly constant until he was married in 1993 and then again after his marriage broke down some years later and this pattern continued until recently.
Mr Binns denied any drug taking behaviour before he joined the Navy. He told me that his admission of drug taking in the Navy record was deliberately misleading to enhance his chance of a discharge from the Navy. He now says his account of taking drugs since the age of 14 is not true. He told me that he was introduced to drugs on Garden Island during his light duties work in administration after the accident. He told me that he has had long periods of using mostly stimulant drugs although on occasion up to 30 times he has used LSD and ecstasy. Mostly he would use speed (amphetamines) or marijuana and alcohol. He would routinely combine these drugs (amphetamines, marijuana and alcohol) together during drug and alcohol binges. These binges were of varying duration and intensity. Mr Binns’ pattern of binge drinking over many years was mirrored by his drug-taking pattern of behaviour. Throughout this period until a few years ago exhibitionism continued, although rarely was it detected.
Subsequent Progress/Specialist Management:
In 2004 he felt very depressed and consulted Dr Clarkson (a GP who specialises in management of ADD and head injury) and after this he ceased ‘driving around and exposing myself’ (his usual form of exhibitionist behaviour was to expose himself to females from within his car. Although this ceased in 2004 other forms of exhibitionist behaviour did not cease until 2007). In 2004 he was also referred to psychiatrist Dr Black. He was treated with Dexamphetamine for ADD.
Soon after he consulted Dr Clarkson in 2004, Mr Binns was admitted to Graylands Hospital for a period of 36 days with what was described as a drug induced manic episode. During his admission he suffered a bad withdrawal from Effexor (venlafaxine). He was prescribed Lithium Carbonate, Sodium Valproate and Olanzapine a drug regimen that has subsequently changed.
After discharge from Graylands there was some discussion amongst his treating clinicians, particularly Dr Black and Dr Clarkson, as to whether or not to recommence Dexamphetamine. Eventually this drug was approved after a second opinion in favour of Dexamphetamine from a second psychiatrist to be provided under very strict conditions including random drug testing.
Mr Binns told me that he ceased regular alcohol binge and drug behaviour about four years ago but he continues to drink to intoxication once a week and alluded to ‘other discretions’ [sic] about once a month. However, Mr Binns categorically denied taking illicit amphetamine, LSD or ‘other drugs of that nature’.
Mr Binns psychiatric diagnosis took some time to establish. Originally he was diagnosed with depression. Then he was diagnosed with manic depression and after the Graylands admission for drug induced mania (caused by large doses of Dexamphetamine and abuse of his therapeutic medications for ADD) he was given the present diagnosis of bipolar disorder and comorbid ADD.
Mr Binns told me that Dr Black closed his practice in Perth and went interstate and he now consults psychiatrist Dr Arvid Linde and Dr Clarkson for treatment of bipolar and comorbid ADD associated with symptoms of stress and anxiety.
Mr Binns is currently treated with Lovan, Lamotrigine, Valdoxan, Abilify, Dexamphetamine, Circadin and Valium.
In 2004 Dr Clarkson raised the possibility that Mr Binns psychiatric/mental illness might be due to the effects of a traumatic brain injury. Mr Binns had his first SPECT scan in 2004 and this showed abnormal cerebral blood flow changes at the time interpreted as due to ADD and bipolar disorder.
Mr Binns had a second SPECT scan in 2011 after the Navy had declined his claim for traumatic brain injury and Mr Binns requested a second opinion. In the interim Mr Binns had become aware of research that suggested bipolar disorder and ADD could mimic the changes on SPECT scan that follow a head injury.
Mr Binns consulted neurologist Dr Susan Ho in 2011. She said that the SPECT scan was consistent with a significant contrecoup head injury (as per the report). An EEG and MRI were normal. Dr Ho told Mr Binns that he had a significant traumatic brain injury resulting in frontal lobe dysfunction and his psychiatric illness was therefore attributed to this.
Current Symptoms:
Mr Binns told me that he feels fairly stable and that he is looking forward to commencing some part-time work in the New Year. Mr Binns told me that he is considering working in the milk packaging industry.
Current Work Status:
Mr Binns receives a 75% naval pension for the effects of head injury. This commenced in 2007. He told me that MRCS [sic] have accepted his condition of head injury and he was paid out a $300,000 lump sum, a pension plus a separate lump sum payment of $27,000. He told me that DVA have rejected the claim for his medical costs.
Present Activities:
Mr Binns told me he is unrestricted in all activities. He told me that he doesn’t like housecleaning and that his mother and sister help with this.
Typical Daily/Physical Activities (indirect questioning):
Mr Binns told me that he spends his day researching UFOs and ‘exopolitics’ on the internet. He told me that he socialises with friends once or twice a week.
Past Medical History and Previous Injuries:
Mr Binns told me that he fell out of a window from a height of approximately 3 metres at the age of 2. He told me that he was hospitalised for two days. He was told he had two black eyes. Apparently he made a full recovery from this injury and there were no sequelae.
Medications and Current Therapy:
Mr Binns takes Lovan (fluoxetine) 60 mg daily, Lamotrigine 200 mg daily, Valdoxan (agometaltine) 50 mg, Abilify (aripiprazole) 30 mg; Dexamphetamine 40 mg; Circadin (melatonin); Valium (diazepam) prn.
He regularly consults his treating GP Dr Clarkson ever two or three weeks and as needed.
He consults his psychiatrist Dr Arvind about every nine weeks.
He told me that there are no future planned therapies or treatment.
Family History
He told me that both parents are well. He has three brothers and one sister.
There is no significant family history.
Personal/Social History:
Mr Binns told me that he lives alone. He has a son [F] aged 17 who lives with his mother in Belmont. [F] had a cochlear implant at the age of 3 as he was born with congenital deafness.
Mr Binns lives in rented accommodation. He smokes 20 cigarettes per day and his alcohol and drug history has been discussed.
PHYSICAL EXAMINATION:
Height 1.86 metres; weight 113 kg. BMI 32.7 kg/m². This puts him in the obese range according to BMI.
Examination found him to be a dextral male of tall height with dark hair who was neatly dressed and groomed. He had plethoric facies. He appeared tremulous. There were no distinguishing marks. He had a scar on the left knee and the left elbow.
Mental State: He was pleasing and cooperative with the interview process. His speech was normal in tone and volume. His mood was reported as euthymic. His affect was reactive and congruent. He did not appear distressed and did not demonstrate an abnormal degree of pain or illness behaviour or symptom elaboration. His mental state, formulation of language and sentence construction was normal.
Cranial Nerves: Visual acuity and olfaction were not tested. The fundi were normal and the discs were flat. The visual fields were full and the pupils were equal and normoreactive at 3 mm. He had a full range of reflex and voluntary eye movements. The remainder of the cranial nerve review was unremarkable.
Limbs, Gait and Balance: In the limbs, tone, power and coordination were normal. The deep tendon reflexes were normal and symmetric and the plantar responses flexor. Pallesthesia was intact. The gait was normal including Romberg’s test and tandem gait and he was able to stand on the heels and toes.
He had a good range of movement neck [sic] It was unrestricted.
General/Examination: A detailed general examination was not performed.
RESULTS OF INVESTIGATIONS AND IMAGING:
I reviewed the MRI scan. This is completely normal. There is nothing to suggest any prior brain trauma in any of the regions suggested by SPECT scan report.
SUMMARY AND ASSESSMENT
Mr Binns, now aged 41, enlisted in the RAN in February 1988 and was discharged in June 1992 RNIN. He was referred for Independent Medical Assessment of an alleged traumatic brain injury that resulted from a motorcycle accident in 1989, on his way to work on a motorbike that he was riding illegally. Subsequent to the motorcycle accident Mr Binns developed a change in his behaviour, alcohol and poly substance drug abuse, psychiatric illness (diagnosed as bipolar disorder and attention deficit disorder) and with social (family breakdown) and legal (drug offences and wilful exposure) consequences.
Prior to the motorcycle accident there was no definite history of behavioural, psychiatric, drug or alcohol problems. Sometime within a year after this accident there is a well-documented decline in Mr Binns’ behaviour, commencing with his disaffection with his Navy career and as a consequence of psychiatric and drug and alcohol problems. The question of causation with respect to Mr Binns’ decline has arisen and this has been attributed to an alleged traumatic brain injury at the time of the motorcycle accident.
Contemporaneous medical records do not support a significant traumatic brain injury.
Subsequent investigations (CT, MRI, SPECT scan and neuropsychological testing) do not provide much plausible evidence for traumatic brain injury. The recently reported abnormal SPECT scan whilst sensitive for effects of traumatic brain injury is not specific. In 2005 the SPECT scan then was reported to show cerebral blood flow changes consistent with bipolar and ADD. Mr Binns’ symptoms in the early aftermath of the accident (even if he did have a brief period of loss of consciousness) were not typical for traumatic brain injury and post concussion syndrome. He has a very detailed memory for [sic] the event and that is rather against significant brain trauma at the time of the accident because memory is very sensitive to the effects of brain trauma and is usually an early and prominent symptom of concussion. Mr Binns’ other early symptoms that he now attributes to brain injury can be explained by other causes such as drug effects, anaesthetic effects and the effects of elbow trauma on the left ulnar nerve.
The mechanism of injury as described is more in keeping with slithering along the bitumen and not a sudden deceleration or hard impact head injury. The evidence for mechanism of injury is based on Mr Binns’ own description of the damage to the helmet and his physical injuries all of which can be attributed to the result of sliding along a bitumen road falling [sic] off a motorcycle. There is also some uncertainty as to the exact speed that he was travelling at the time.
On balance despite the close temporal relationship between the onset of Mr Binns’ drug taking behaviour, his psychiatric and social decline after the accident, Mr Binns’ psychiatric and drug abuse problems cannot be easily explained on the basis of traumatic brain injury (in the absence of other medical evidence supporting brain trauma) and in my opinion other non brain trauma causes are more likely, and it is quite plausible that the accident was incidental to the development of alcohol and polysubstance abuse problems, common enough conditions at that time of life.
In response to the specific questions:
1.Do you concur with the diagnosis of a traumatic brain injury and frontal lobe dysfunction arising from his motorcycle accident in 1989?
I do not concur with the diagnosis of a traumatic brain injury and frontal lobe dysfunction arising from his motorcycle accident in 1989.
Contemporaneous medical records do not support any significant degree of traumatic brain injury. There was no definite loss of consciousness recorded in the medical record, no retrograde or anterograde amnesia (his memory for [sic] the accident was very clear at the time) and any period of amnesia was very brief amounting to a few moments after the actual accident itself.
No symptoms of concussion or post-concussion syndrome were reported by Mr Binns at the time nor were there any signs notwithstanding Dr Black’s comments that the Orthopaedic Surgeons may not have noticed these signs as they were focussed on Mr Binns’ orthopaedic injury to the elbow. It is true that there is no mention in the medical record from Royal Perth Hospital that head injury was specifically considered and excluded.
That Mr Binns’ helmet was allegedly damaged, although I have not seen any objective evidence to corroborate this, supports the contention that there was head trauma. However, the type of head trauma appears to have been more in keeping with a relatively slow deceleration as a result of Mr Binns coming to a halt after sliding along the bitumen, and the damage to the helmet as described to me was in keeping with this, and certainly Mr Binns’ other physical injuries were also in keeping with this mechanism.
The absence in Mr Binns of any significant symptoms of post concussion syndrome such as headaches, memory and other cognitive impairments that I specifically enquired about today, was against any significant head injury, and unless Drs Black and Ho interpret Mr Binns’ subsequent alcohol abuse, poly drug abuse and psychological deterioration as the only symptoms or consequences of traumatic brain injury, then I think that one must look for other causes for the development in Mr Binns of these problems and any other features of frontal lobe dysfunction.
None of the contemporaneous medical records, or Mr Binns’ subsequent decline, or his and his treating doctors not entirely inaccurate or implausible assertions about the possibility of a head injury, outweigh the evidence, as I see it, against significant traumatic brain injury at the time of the motorcycle accident.
The question of frontal lobe injury has been raised. The neuropsychological assessment by Dr Claudia Hoeltje Clinical Psychologist, dated 7 October 2004 does not support a diagnosis of frontal lobe dysfunction (but cannot completely exclude it either). On balance the test profile is interpreted as being more consistent with psychiatric illness and possibly adversely affected by Mr Binns’ consumption of Dexamphetamine at the time. For this reason Dr Black choses [sic] to dismiss the findings as ‘… difficult to interpret … due to taking an excessive dose of stimulant medication … but other aspects of his executive dysfunction remained … these deficiencies were likely to be significant.’
On balance if not for the development of Mr Binns’ mental illness that commenced soon after the motorcycle accident, no particular importance would be attached to the history, signs and injuries at the time of the accident, or in the immediate aftermath, with respect to traumatic brain injury.
2.In your opinion, do the psychiatric symptoms and substance abuse displayed arise as a result of that injury?
Developing a mental illness without neuropsychological evidence or other features of head injury of brain trauma, in my opinion as a neurologist, is not sufficient to retrospectively attribute causation to a missed diagnosis of traumatic brain injury.
I agree that if Mr Binns’ accident in 1989 had caused significant traumatic brain injury sufficient to damage the frontal lobes in a manner described by Dr Black (involving the orbitofrontal cortex), then it is plausible, if not likely, that the psychiatric symptoms and substance abuse displayed by Mr Binns could be attributed to traumatic brain injury.
Mr Binns denied any significant drug or alcohol abuse or any psychiatric or behavioural problems prior to 1989. There is nothing in the Naval entrance medical examination to suggest any psychological pathology. It has been suggested that Mr Binns may have suffered from ADHD in childhood but there is no family history of psychiatric illness, therefore there are no clues in Mr Binns’ development of family history to explain Mr Binns’ decline after the motorcycle accident.
Dr Black attributed the symptoms displayed by Mr Binns during the neuropsychological assessment to frontal lobe dysfunction. He said, ‘… symptoms reflected a primary psychiatric condition, the effects of orbitofrontal dysfunction (ie disinhibition and reduced insight into social interchanges).’
In my opinion if Mr Binns’ psychiatric symptoms and neuropsychological profile are attributed to frontal lobe injury then causes other than traumatic brain injury should be considered in the differential diagnosis.
For instance frontal lobe dysfunction might result from the effects of drug (chronic or acute) and alcohol. Dr Black acknowledged that Mr Binns had not complied with his recommendations to control his Dexamphetamine use (he had increased his dose of Dexamphetamine up to 16 tablets per day according to Dr Black) and to cease marijuana (Mr Binns relapsed in his marijuana use too) and this precipitated a drug induced manic-like presentation, and led to Mr Binns’ first admission to a psychiatric hospital.
The onset of Mr Binns’ drug use is difficult to determine from the medical record alone. According to Mr Binns’ drug history during this assessment he denied anything more than occasional marijuana before his accident in 1989.
On the other hand according to the medical record when Mr Binns attempted to obtain a discharge from the Navy in 1992 he stated that he had been using drugs since age 14. According to Dr Black – ‘There does not appear to be any corroborative evidence to support this. It would appear that Mr Binns misrepresented the truth in the hope that he could secure his discharge from the Navy’. This is in line with Mr Binns’ history provided to me today. However, if in truth Mr Binns had been using drugs since age 14 then that could form the basis for subsequent development of psychiatric illness irrespective of any head injury. In fact, Mr Binns’ drug and alcohol history since the motorcycle accident in 1989 is, in my opinion, sufficient to cause brain damage and to account for his neuropsychological profile and his psychiatric illness without invoking a head injury as a cause of brain damage.
Under the circumstances it is difficult to know how reliable a witness Mr Binns is. If he misrepresented the truth then in 1992, as he now says, in the hope that he could secure his discharge from the Navy, then, in my opinion, Mr Binns would not be averse to misrepresenting the truth again in the hope of gaining some benefit. I was impressed during this assessment with Mr Binns’ apparent level of candidness in his responses and I did not gain the impression that he was deliberately hiding information, rather that he had been convinced over time and in particular by Drs Clarkson and Black that all of his problems can be attributed to a head injury in 1989, not diagnosed until 2004.
Many youths at that age commence taking drugs for myriad reasons. In which case, the timing of Mr Binns’ accident was no more than a coincidence in the development of his problems or else serves as a temporary psychological rather than neurological trigger due to the effects of an orthopaedic injury in a vulnerable 19 year-old individual. It is more likely that after the motorcycle accident in 1989 drug and alcohol abuse, in the context of his disaffection with the Navy gave rise to psychiatric illness and caused some degree of frontal lobe dysfunction and behaviour change, and might even explain the SPECT scans cerebral blood flow abnormalities.
Dr Ho took her history in 2011, 22 years after the motorcycle accident. She has in my opinion placed undue emphasis on Mr Binns’ account of the accident and alleged subsequent loss of consciousness, which was not part of the original history according to contemporaneous medical records. Furthermore, she has interpreted the SPECT scan abnormalities as diagnostic of traumatic brain injury without discussing in her report the differential diagnosis for these findings that includes psychiatric illness and drug induced effects on cerebral blood flow.
Even if Mr Binns was drug free at the time of the SPECT scan, drug effects on brain function may persist after cessation of drugs. Brain damage due to the effects of drugs and alcohol may be chronic and permanent.
On balance there is not enough evidence in the medical records to attribute Mr Binns’ psychiatric symptoms and polysubstance abuse to traumatic brain injury.
3.Should those symptoms have raised with naval medical personnel the possibility of a brain injury during his remaining period of service to June 1992?
Psychiatric symptoms and substance abuse do not immediately raise the possibility of a brain injury in the absence of a well documented head injury such as a period of witnessed loss of consciousness, abnormal mental state at the scene, focal neurological signs, a seizure, documented antero and posterograde amnesia, and symptoms of concussion such as headache and cognitive impairment.
In the absence of these symptoms, in my experience the possibility that psychiatric symptoms and substance abuse were a result of traumatic brain injury would only be considered in the present of appropriate structural brain damage on CT or MRI.
The presence of changes on SPECT scan (which are non-specific) uncorroborated by reliable evidence for a traumatic brain injury would not be sufficient evidence in my opinion on which to base a diagnosis of traumatic brain injury leading to psychiatric symptoms and substance abuse. (I am not an expert in the interpretation of the SPECT scan, but I do rely on this test to help support a diagnosis as part of a comprehensive set of investigations in several different neurological diseases).
That said, there are cases in the forensic literature and in my experience, where abnormal behaviour and psychiatric illness that may or may not be associated with alcohol or drug problems may be attributed to long forgotten head injury. Usually in these instances there is additional evidence to corroborate the diagnosis such as a clear history of a post concussion syndrome, a well-established pattern of neuropsychological test abnormalities and structural brain abnormalities on CT or MRI scan consistent with trauma.
4.If the brain injury and frontal lobe dysfunction had been diagnosed at that time, was there any treatment that could have mitigated or reversed the damage?
This is speculative as I do not believe Mr Binns has frontal lobe dysfunction due to brain injury. In my opinion any frontal lobe dysfunction in Mr Binns is more likely to have developed as a result of drug and alcohol abuse not trauma.
However, if Mr Binns did have a significant traumatic brain injury in 1989 sufficient to cause frontal lobe dysfunction, then appropriate treatment at the time could have mitigated or reversed, not the damage itself which is considered to be permanent, but perhaps the consequences of the damage could have been treated.
Rehabilitation input to assist individuals adjust to the impairments associated with brain injury is crucial to optimal recovery and to prevent secondary complications.
Assessment of deficits and provision of appropriate rehabilitation is a standard part of post head injury management according to accepted guidelines.
The lack of assessment of traumatic brain injury associated deficits and absence of rehabilitation and counselling following brain injury, can significantly compromise adjustment to injury and prevent development of appropriate compensatory strategies and places patients at increased risk of developing psychological disorders, in response to the changes in functioning which develop after traumatic brain injury.
Having said that, it is apparent from the records of Mr Binns that when he was offered therapy for his drug and alcohol problems he did not want to accept this and furthermore, despite some therapy for his exhibitionism his behaviour did not respond. Therefore it is by no means certain even if he had a brain injury and even if frontal lobe dysfunction had been diagnosed at the time, and even if he had been offered any treatment, that this would have mitigated or reversed the damage given the evidence that treatments he was offered at the time were rejected or ignored and made no difference to his behaviour.
It is worthwhile referring to the report issued by Dr Peter Wurth on 23 April 1992 in which the psychiatrist concludes, ‘Because of his lack of insight and motivation I do not think he is a candidate for any drug rehabilitation nor any psychological therapy’.
Perhaps if the possibility of a brain injury (or the more likely possibility of some other psychological effect of the motorcycle accident in 1989 on Mr Binns’ behaviour) been [sic] raised at that time by Dr Wurth, Mr Binns may have received more sympathetic and intensive attempts from the Navy to rehabilitate him.
Therefore I do believe that had brain injury and frontal lobe dysfunction or any other effects of the motorcycle accident been diagnosed at that time, treatment could have mitigated but not reversed the damage of brain trauma.
…” (Exhibit R1)
[Dr Susan Ho’s report, which is referred to in Dr Rosen’s report, is set out in paragraph 39 below.]

It seems to the Tribunal that Dr Black’s diagnosis of “closed head injury” was based on the history he obtained from the applicant and is inconsistent with the abovementioned contemporaneous medical records, the opinion of Dr Hoeltje stated in her report of 7 October 2004, and the Cranial CT report of Dr Wilkinson dated 3 November 2004. The Tribunal, accordingly, attaches little weight to Dr Black’s diagnosis.
Having regard to the whole of the evidence before it, and attaching the greatest weight to the contemporaneous Royal Perth Hospital records, the Tribunal is not satisfied that the applicant suffered a head injury in the motorcycle accident of 20 January 1989.
Traumatic brain injury
The medical evidence before the Tribunal which supports the proposition that the applicant suffered a traumatic brain injury in the motorcycle accident of 20 January 1989 comprises the reports of Dr Black dated 31 August 2005 and 9 April 2007 (see paragraphs 27 and 29 above), the report of Dr Ho dated 9 May 2011 (see paragraph 39 above), and the letters from Dr Clarkson dated 14 July 2012 and 10 April 2013 (see paragraphs 40 and 41 above).
As regards Dr Black’s opinion that the applicant suffered a traumatic brain injury in the motorcycle accident of 20 January 1989, the Tribunal notes his evidence that he understood that accident to have involved the applicant’s “going over the handlebars” of the motorcycle, “flying through the air” and landing on the ground with sufficient force to cause substantial “brain shake”. The Tribunal also notes the reference, in his report of 31 August 2005, to the applicant’s having been “unconscious for ‘some time’” immediately after that accident.
Dr Ho’s report of 9 May 2011 concludes that “the clinical features and investigation findings are consistent with traumatic brain injury resulting in frontal lobe dysfunction”. In her report, however, Dr Ho referred to a Cranial MRI dated 25 January 2011 which showed “no focal brain parenchymal lesion” and “no encephalomalacia”. In the Tribunal’s opinion, Dr Ho’s report does not contain a sufficient basis for the expression of an unequivocal opinion that the applicant suffered a traumatic brain injury in the motorcycle accident of 20 January 1989. As previously noted, Dr Ho was not called as a witness at the hearing.
Similarly, Dr Clarkson’s abovementioned letters merely refer to the applicant’s “traumatic brain injury” or “cerebral trauma” without providing any basis for those references other than his concurrence with the opinion of Dr Black. Dr Clarkson, as previously noted, was not called as a witness at the hearing. The Tribunal attaches little weight to Dr Clarkson’s letters.
The Tribunal, on the other hand, notes the following extract from Dr Rosen’s report of 11 January 2013 (see paragraph 35 above):
“…
I reviewed the MRI scan. This is completely normal. There is nothing to suggest any prior brain trauma in any of the regions suggested by SPECT scan report.
…
Contemporaneous medical records do not support a significant traumatic brain injury.
Subsequent investigations (CT, MRI, SPECT scan and neuropsychological testing) do not provide much plausible evidence for traumatic brain injury. The recently reported abnormal SPECT scan whilst sensitive for effects of traumatic brain injury is not specific. In 2005 the SPECT scan then was reported to show cerebral blood flow changes consistent with bipolar and ADD. Mr Binns’ symptoms in the early aftermath of the accident (even if he did have a brief period of loss of consciousness) were not typical for traumatic brain injury and post concussion syndrome. He has a very detailed memory for [sic] the event and that is rather against significant brain trauma at the time of the accident because memory is very sensitive to the effects of brain trauma and is usually an early and prominent symptom of concussion. Mr Binns’ other early symptoms that he now attributes to brain injury can be explained by other causes such as drug effects, anaesthetic effects and the effects of elbow trauma on the left ulnar nerve.
The mechanism of injury as described is more in keeping with slithering along the bitumen and not a sudden deceleration or hard impact head injury. The evidence for mechanism of injury is based on Mr Binns’ own description of the damage to the helmet and his physical injuries all of which can be attributed to the result of sliding along a bitumen road falling [sic] off a motorcycle. There is also some uncertainty as to the exact speed that he was travelling at the time.
…
I do not concur with the diagnosis of a traumatic brain injury and frontal lobe dysfunction arising from his motorcycle accident in 1989.
Contemporaneous medical records do not support any significant degree of traumatic brain injury. There was no definite loss of consciousness recorded in the medical record, no retrograde or anterograde amnesia (his memory for [sic] the accident was very clear at the time) and any period of amnesia was very brief amounting to a few moments after the actual accident itself.
No symptoms of concussion or post-concussion syndrome were reported by Mr Binns at the time nor were there any signs notwithstanding Dr Black’s comments that the Orthopaedic Surgeons may not have noticed these signs as they were focussed on Mr Binns’ orthopaedic injury to the elbow. It is true that there is no mention in the medical record from Royal Perth Hospital that head injury was specifically considered and excluded.
That Mr Binns’ helmet was allegedly damaged, although I have not seen any objective evidence to corroborate this, supports the contention that there was head trauma. However, the type of head trauma appears to have been more in keeping with a relatively slow deceleration as a result of Mr Binns coming to a halt after sliding along the bitumen, and the damage to the helmet as described to me was in keeping with this, and certainly Mr Binns’ other physical injuries were also in keeping with this mechanism.
The absence in Mr Binns of any significant symptoms of post concussion syndrome such as headaches, memory and other cognitive impairments that I specifically enquired about today, was against any significant head injury, and unless Drs Black and Ho interpret Mr Binns’ subsequent alcohol abuse, poly drug abuse and psychological deterioration as the only symptoms or consequences of traumatic brain injury, then I think that one must look for other causes for the development in Mr Binns of these problems and any other features of frontal lobe dysfunction.
None of the contemporaneous medical records, or Mr Binns’ subsequent decline, or his and his treating doctors not entirely inaccurate or implausible assertions about the possibility of a head injury, outweigh the evidence, as I see it, against significant traumatic brain injury at the time of the motorcycle accident.
…”
The Tribunal regards Dr Rosen’s report and evidence as comprehensive, balanced, well-reasoned and persuasive, and it attaches great weight thereto. It seems to the Tribunal that the abovementioned opinion of Dr Black has been formed on the understanding that the applicant, in the motorcycle accident, landed on the ground with such force and sudden deceleration as to cause substantial “brain shake”, and that, immediately thereafter he was unconscious “for some time” – an understanding which, in the Tribunal’s opinion, is factually inaccurate. The Tribunal prefers the analysis of Dr Rosen – including, in particular, his reference to the motorcycle accident involving the applicant’s sliding along the bitumen with a relatively slow deceleration before coming to a halt, without significant loss of consciousness thereafter or symptoms of concussion or post-concussion syndrome – because, in its opinion, that analysis is more consistent with the contemporaneous medical records than the analysis of Dr Black.
In the Tribunal’s opinion the above-quoted analysis of Dr Rosen is sound and the Tribunal accepts that analysis.
Accordingly, the Tribunal is not satisfied that the applicant suffered a traumatic brain injury in the motorcycle accident of 20 January 1989.
The Tribunal would add that, if it had found that the applicant had suffered a traumatic brain injury, it would have been necessary for it, in accordance with s 120B of the VE Act, to consider and apply Statement of Principles concerning moderate to severe traumatic brain injury No 63 of 2012 (“the SoP”). The Tribunal notes, however, that, for the purposes of the SoP, “moderate to severe traumatic brain injury” is defined in clause 3(b) of the SoP as follows:
“ For the purposes of this Statement of Principles, ‘moderate to severe traumatic brain injury’ means significant damage to the brain resulting from the transfer of kinetic energy to the brain from external physical forces, as manifested by at least one of the following clinical signs:
(i)     loss of consciousness for 30 minutes or more;
(ii)     anterograde amnesia for 24 hours or more;
(iii)    an intracranial lesion;
(iv)     penetration of the dura mater; or
(v)     a Glasgow Coma Scale score of less than 13.
This definition excludes injury from radiation, electricity, heat or surgery.
Note: This Statement of Principles applies to the direct effects of the traumatic brain injury. Trauma to the brain can cause other diseases or injuries and these are covered by a range of other Statements of Principles in which trauma to the brain (variously worded) is listed as a risk factor. The relevant Statements of Principles include but are not limited to: epilepsy, epileptic seizure, subdural haematoma, subarachnoid haemorrhage, deep vein thrombosis, cerebrovascular accident, Meniere’s disease, anosmia, hypopituitarism, narcolepsy, Parkinson’s disease and parkinsonism, Alzheimer-type dementia and dementia pugilistica.”
The evidence before the Tribunal does not support the proposition that the applicant suffered a “moderate to severe traumatic brain injury” as defined in clause 3(b) of the SoP because that evidence does not establish that any of the clinical signs listed in subparas (i)–(v) of clause 3(b) of the SoP was present in the applicant’s case. The Tribunal notes that no other Statement of Principles concerning traumatic brain injury has been determined by the Repatriation Medical Authority under s 196B(3) of the VE Act.
Frontal lobe dysfunction
Although Dr Ho, in her report of 9 May 2011, gave a diagnosis of “frontal lobe dysfunction “, she attributed that condition to the applicant’s having suffered a traumatic brain injury in the motorcycle accident of 20 January 1989 – a basis which the Tribunal has found not to exist. Dr Black’s primary opinion is that the applicant suffered a traumatic brain injury in the motorcycle accident of 20 January 1989. He also referred to the applicant’s subsequently exhibiting symptoms “consistent with dysfunction of the Orbitofrontal Cortex” which he appeared to attribute to cerebral trauma suffered in that accident (see the section of his report of 31 August 2005 headed “A plausible, integrated explanation for Mr Binns difficulties” set out in paragraph 29 above).
Although Dr Rosen did not concur with the diagnosis of a traumatic brain injury, he did not exclude the possibility that the applicant has suffered frontal lobe dysfunction attributable to other causal factors, such as drug and alcohol abuse. He added (in his report of 11 January 2013):
“ … Mr Binns’ drug and alcohol history since the motorcycle accident in 1989 is, in my opinion, sufficient to cause brain damage and to account for his neuropsychological profile and his psychiatric illness without invoking a head injury as a cause of brain damage.
…
… It is more likely that after the motorcycle accident in 1989 drug and alcohol abuse, in the context of his disaffection with the Navy gave rise to psychiatric illness and caused some degree of frontal lobe dysfunction and behaviour change, and might even explain the SPECT scans cerebral blood flow abnormalities.
…
… I do not believe Mr Binns has frontal lobe dysfunction due to brain injury. In my opinion any frontal lobe dysfunction in Mr Binns is more likely to have developed as a result of drug and alcohol abuse not trauma.”
Although the Tribunal has substantial reservations, it is prepared to find, having regard to the abovementioned evidence, that the applicant has suffered frontal lobe dysfunction. The Tribunal finds that the applicant’s frontal lobe dysfunction is a “disease”, as defined in s 5D(1) of the VE Act.
Is the applicant’s frontal lobe dysfunction a “defence-caused disease”, within the meaning of s 70 of the VE Act?
The Tribunal notes at the outset that, as presently advised, the Repatriation Medical Authority has neither determined a Statement of Principles under s 196B(3) of the VE Act, nor declared that it does not propose to make such a Statement of Principles, in respect of frontal lobe dysfunction. Accordingly, pursuant to s 120B(4) of the VE Act, s 120B(3) of that Act does not apply in relation to the applicant’s claim for disability pension lodged on 23 May 2006.
As previously mentioned, Dr Black and Dr Ho have attributed the applicant’s frontal lobe dysfunction to a traumatic brain injury sustained by him in the motorcycle accident of 20 January 1989.
As also previously mentioned, however, the Tribunal is not satisfied that the applicant suffered a traumatic brain injury in the motorcycle accident of 20 January 1989.
The Tribunal accepts the abovementioned analysis of Dr Rosen and, on the basis of his abovementioned report and evidence, it is satisfied, and finds, that the applicant’s frontal lobe dysfunction did not result from the motorcycle accident of 20 January 1989.
The only other basis on which (the Tribunal understands) the applicant contends that he suffered a defence-caused injury or a defence-caused disease was that the relevant injury or disease was not properly diagnosed by the RAN medical service and he was unable to obtain appropriate clinical management for the relevant injury or disease during his service in the RAN, and that, as a result, that injury or disease has subsequently been aggravated.
The short answer to that contention, as regards head injury and traumatic brain injury, is that the Tribunal has concluded that it is not satisfied that the applicant suffered either such injury in the motorcycle accident of 20 January 1989. As regards frontal lobe dysfunction, the Tribunal, having regard to the whole evidence before it, is not satisfied that the applicant contracted frontal lobe dysfunction during his RAN service. On the basis of the medical evidence before it, the Tribunal cannot be satisfied that the applicant contracted frontal lobe dysfunction before 2004 when (the Tribunal understands) he first underwent a SPECT scan which showed some abnormality of blood flow in the orbitofrontal cortex region. Accordingly, the issues of failure by the RAN to make a proper diagnosis and the applicant’s inability to obtain appropriate clinical management in relation to such a condition during his RAN service do not arise.
The Tribunal concludes, therefore, that the applicant’s frontal lobe dysfunction is not a “defence-caused disease”, within the meaning of s 70(5) of the VE Act.
The “serious default or wilful act” issue: s 70(9)(a) of the VE Act
Given the Tribunal’s abovementioned conclusions that:
·it is not satisfied that the applicant suffered a head injury or a traumatic brain injury in the motorcycle accident of 20 January 1989; and
·the applicant’s frontal lobe dysfunction is not a “defence-caused disease”, within the meaning of s 70(5) of the VE Act;
the issue whether the applicant suffered a “defence-caused injury” or contracted a “defence-caused disease” as a result of his “serious default or wilful act”, within the meaning of s 70(9)(a) of the VE Act, does not arise.
Decision
For the above reasons, the decision under review is affirmed.

I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop.

..................[sgd D Brodie]..........................................
Administrative Assistant
Dated 13 September 2013

Date of hearing 8 August 2013

Representative of the Applicant In person (unrepresented)

Representative of the Respondent Mr C Ponnuthurai
Compensation and Review Branch
Department of Veterans’ Affairs

Division	Veterans' Appeals Division
File Number	2012/2060
Re	Charles Binns
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President S D Hotop
Date	13 September 2013
Place	Perth

Date of hearing	8 August 2013
Representative of the Applicant	In person (unrepresented)
Representative of the Respondent	Mr C Ponnuthurai Compensation and Review Branch Department of Veterans’ Affairs