Dahl and Repatriation Commission
[2009] AATA 387
•29 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 387
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2314
GENERAL ADMINISTRATIVE DIVISION ) Re RAYMOND JOHN DAHL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs Josephine Kelly, Senior Member
Dr MEC Thorpe, MemberDate29 May 2009
PlaceSydney
Decision We affirm the reviewable decision in relation to claims for alcohol dependence/abuse and gastro-oesophageal reflux disease. In relation to the diagnosis of schizoid personality disorder, we set aside that diagnosis and substitute the finding that Mr Dahl suffers from no psychiatric condition, and affirm the decision to refuse Mr Dahl's claim for anxiety disorder. .....................[sgd]......................
Presiding Member
Mrs Josephine Kelly, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Claim for war pension – Revocation of accepted conditions – Reduction to 20 per cent of General Rate – Accepted condition gastro-oesophageal reflux disease (GORD) - Whether GORD war-caused – Whether suffers from anxiety disorder, alcohol abuse or dependence or other psychiatric disorder – Medical evidence considered – Held Applicant’s evidence unreliable –Does not suffer from psychiatric condition – Decision affirmed in part – Otherwise set aside and substituted decision no psychiatric condition
Veterans’ Entitlements Act 1986, ss 5D, 120, 120A
Statement of Principles concerning Gastro-Oesophageal Reflux Disease (Instrument No 11 of 2005
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Budworth (2001) 116 FCR 200
REASONS FOR DECISION
29 May 2009 Mrs Josephine Kelly, Senior Member
Dr MEC Thorpe, MemberSUMMARY
1. Mr Raymond Dahl had operational service in Vietnam from 5 November 1966 to 9 May 1967 under the Veterans’ Entitlements Act 1986 (the Act). He seeks the review of the decision made by the Repatriation Commission (the Commission) in 2006 as varied by the Veterans' Review Board (VRB) on 9 March 2007, which had the effect of revoking a decision made in 2002 to accept anxiety disorder, alcohol dependence and gastro-oesophageal reflux disease (GORD) as being related to service. Currently, Mr Dahl's accepted conditions are bilateral sensorineural hearing loss and bilateral tinnitus.
2. For the reasons set out below, we affirm the reviewable decision in relation to claims for alcohol dependence/abuse and GORD. In relation to the diagnosis of schizoid personality disorder, we set aside that diagnosis and substitute the finding that Mr Dahl suffers from no psychiatric condition and affirm the decision to refuse Mr Dahl's claim for anxiety disorder.
THE ISSUES
3. The parties agree that Mr Dahl suffers from GORD for which the date of clinical onset is 2001.
4. The issue is whether there is a relevant causal link between Mr Dahl's operational service and GORD. That question raises the following issues as identified by the parties:
Whether:
a) Mr Dahl suffers from anxiety disorder or alcohol abuse or both or some other psychiatric condition however described;
b) Stressors on operational service contributed to the onset of his anxiety disorder/psychiatric condition and/or alcohol abuse;
c) Alternatively, his anxiety disorder/psychiatric condition or alcohol abuse contributed to the onset of the other condition; and
d) His alcohol consumption due to his anxiety disorder or alcohol abuse or both, or a war caused alcohol habit, contributed to the onset of his gastro-oesophageal reflux disease.
THE CASE FOR MR DAHL
5. Mr Colborne, counsel who appeared for Mr Dahl, relied on the evidence of Mr Dahl, and in relation to the medical issues, he relied principally on the evidence of Dr Dinnen, consultant psychiatrist. Dr Dinnen’s diagnosis was that Mr Dahl suffered from generalised anxiety disorder (GAD) with associated excessive use of alcohol, both of which were relevantly contributed to by Mr Dahl's operational service in Vietnam. In his written evidence, Dr Dinnen explained why he did not consider that Mr Dahl suffered from Alcohol Abuse. However, during his oral evidence in chief, Dr Dinnen agreed that, if Mr Dahl had a history of drink driving as put to him, a diagnosis of Alcohol Abuse would be appropriate.
6. Mr Colborne also relied, to an extent, on the evidence of Dr Keshava, consultant psychiatrist, who has seen Mr Dahl on a number of occasions since 2001, and Dr Burman, consultant psychiatrist, to whom Mr Dahl was referred by the VRB. Dr Keshava consistently diagnosed GAD with Alcohol Dependence. Dr Burman diagnosed Mr Dahl as suffering from Schizoid Personality Disorder and Alcohol Abuse. Mr Colborne acknowledged that neither Dr Keshava nor Dr Burman addressed the diagnostic criteria for Alcohol Abuse or Dependence. He did not press a diagnosis of Alcohol Dependence as diagnosed by Dr Keshava.
7. Mr Colborne argued that the evidence of Dr Roberts, consultant psychiatrist, should be given no weight. We will address those arguments later in this decision.
8. Mr Colborne's case was that it was open on the evidence for the Tribunal to find that GORD was contributed to by Mr Dahl's operational service because Mr Dahl's alcohol consumption was a consequence of his war-caused anxiety disorder or alcohol abuse or both or because of a war-caused alcohol habit.
9. Mr Colborne argued that the evidence was clear that Mr Dahl's alcohol consumption satisfied factor 5(d) in the Statement of Principles concerning Gastro-Oesophageal Reflux Disease (Instrument No 11 of 2005), which requires the veteran to have consumed an average of at least 300 grams of alcohol per week for at least the 12 months before the clinical onset of GORD.
CONSIDERATION
10. This matter falls to be determined pursuant to s 120 and s 120A of the Act. We have taken into account all the evidence before us.
11. Mr Dahl was born on 12 March 1945 and is now 63 years old.
12. The decision to revoke acceptance of anxiety disorder, alcohol dependence and GORD arose from the consideration of Mr Dahl's application in 2004 to increase his pension. Mr Dahl signed the application on 25 October 2004 and it was stamped "received" on 28 October 2004. The parties agreed that earliest date of effect of this decision would be 28 March 2006, that is the date when Mr Dahl's pension was reduced from 60% of the general rate to 20% following the Commission's revocation decision dated 9 February 2006.
Does Mr Dahl suffer from anxiety disorder or alcohol abuse or both or some other psychiatric condition, however described?
13. The first question to consider is whether we are reasonably satisfied that Mr Dahl suffers from an anxiety disorder or another unspecified psychiatric condition, and/or from alcohol abuse (Repatriation Commission v Budworth (2001) 116 FCR 200; Benjamin v Repatriation Commission (2001) 70 ALD 622).
14. Mr Colborne submitted that in respect of each condition, our first task is:
to identify the collection of relevant symptoms, … (which) constituted the disease which the veteran contracted. It is not a matter of nomenclature or attaching a traditional medical label to the collection of symptoms (Repatriation Commission v Budworth (2001) 116 FCR 200 at 207).
15. A similar proposition was stated by the Full Federal Court in Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634:
The first question for the tribunal will be how to characterise the psychiatric problems exhibited by the veteran. If the tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease.
16. Four psychiatrists have seen Mr Dahl and given opinions about his psychiatric condition: Dr Keshava, Dr Burman, Dr Roberts and Dr Dinnen.
17. Dr Keshava first saw Mr Dahl in 2001 upon the referral of Dr Wong, Mr Dahl's general practitioner, but as we understand the evidence, the referral was based upon the recommendation of the Vietnam Veterans' Association. Dr Keshava first saw Mr Dahl in the context of medical reports being obtained for the purpose of Mr Dahl's claiming a disability pension under the Act. Reports from Dr Keshava dated 11 July 2001, 4 March 2002 and 19 November 2004 were in evidence. He consistently diagnosed GAD with alcohol dependence. As pointed out by Mr Colborne, and referred to by Mr Dahl, Mr Dahl has continued to see Dr Keshava since 2004 and was still seeing him around the time of the hearing. To the extent that Dr Keshava's clinical notes can be deciphered, it appears that Mr Dahl had seen Dr Keshava on about 35 occasions from 5 June 2001 to 1 September 2008.
18. Mr Dahl was referred to Dr Burman by the VRB. Dr Burman saw Mr Dahl once. His report is dated 13 December 2006. Dr Burman diagnosed Alcohol Abuse and Schizoid Personality Disorder (mild to moderate). Mr Dahl was critical of Dr Burman because he said that the doctor had thought he was seeing Mr Dahl in relation to a workers' compensation matter rather than a veterans' matter, and commented that he had not dealt with a veteran's claim before.
19. Dr Dinnen saw Mr Dahl on 11 October 2007 for the purpose of these proceedings. He prepared reports dated 30 October 2007 and 16 June 2008. The latter report reviewed Dr Roberts' report dated March 2008. Dr Dinnen diagnosed GAD associated with excessive alcohol use. Dr Dinnen dismissed Dr Burman's diagnosis of Personality Disorder, and did not diagnose Alcohol Abuse because not all the criteria required "in the SoP" were satisfied.
20. During his evidence-in-chief, Dr Dinnen was asked whether he would change his diagnosis in light of Mr Dahl's evidence of a "history quite recently" of drinking and driving. That is, of having three or four stubbies, “maybe more when it was raining, and maybe having one on the way home in his car”. Dr Dinnen said that that would be consistent with Alcohol Abuse. When questioned by the Tribunal about the diagnostic criteria that such behaviour fits, Dr Dinnen said that he did not have the SoP before him, but that he thought that there was a clear indication of drinking where there is a risk associated with drinking, so "drink driving at night certainly suggests that there is a significant problem". We understand this to be a reference to diagnostic criterion No. (3) in SoP No. 76 of 1998 for Alcohol Abuse, that is "recurrent alcohol use in situations in which it is physically hazardous". This is a similar criterion to that in DSM-IV. Both DSM-IV and the SoP require only one of four criteria to be satisfied within a 12 month period for diagnosis of Alcohol Abuse. The criteria for Alcohol Abuse in both are less stringent than the criteria for Alcohol Dependence.
21. Dr Roberts saw Mr Dahl on 13 February 2008 and prepared reports dated 3 March 2008, 10 September 2008 and 22 January 2009 which were in evidence. He was unable to establish a psychiatric diagnosis. Dr Roberts wrote in his March 2008 report that he was not able to make a DSM-IV diagnosis in Mr Dahl, noting: “I find no evidence that Mr Dahl experiences any symptoms of a psychiatric conditin”.
22. Mr Colborne argued that Dr Roberts' evidence should be given no weight for two reasons. The first was that Dr Roberts did not accept that a textbook he had referred to and the DSM-IV [TR] did not support his assertion that an anxiety state inevitably gave rise to physiological symptoms. Dr Roberts stated in his report of 3 March 2008 that Mr Dahl had none of the physiological symptoms required to diagnose an anxiety condition. We do not consider that Dr Roberts' evidence should be discounted on this basis. Such symptoms may be associated features of the condition.
23. Secondly, Mr Colborne questioned Dr Roberts' view that Mr Dahl was overstating his alcohol intake because he was still able to function as a chef. The basis for Mr Colborne's cross-examination on this question was the first criterion for "alcohol dependence" in the SoP, and we infer also in DSM-IV, which refers to "tolerance" and gives two definitions of it. We find that this cross-examination was confusing and the questions were put out of a proper context. It does not cause us to give less weight to Dr Roberts' evidence in relation to Mr Dahl.
24. We prefer the evidence of Dr Roberts to that of the other doctors who have seen or treated Mr Dahl. We consider that the history he has taken is the most accurate, and we accept his analysis. He questioned Mr Dahl's account of his alcohol intake, as do we.
Mr Dahl’s evidence and histories given to psychiatrists
25. We find, on the evidence, that Mr Dahl did not think about his service in Vietnam until he went to the Vietnam Veterans' Association and was questioned about it, and continued to be questioned about it by each psychiatrist he saw.
26. Further, we find that Mr Dahl's evidence is unreliable for the following reasons. First we find that he has a tendency to give answers that he believes the questioner wants. Dr Dinnen commented in his report of October 2007 that at interview Mr Dahl was tense, indecisive and tended to give poor response to inquiry. A similar difficulty faced Mr Colborne during the hearing. He had to question Mr Dahl very closely to obtain the evidence to support his case. One explanation might be that Mr Dahl is a poor historian. However, in our view the more probable explanation is that Mr Dahl did not have the symptoms, reactions and recollections that Mr Colborne, Dr Keshava and Dr Dinnen were asking about and when pressed, he gave an answer he thought was being sought.
27. An example of this kind of response was Mr Dahl's evidence, given for the first time during examination-in-chief, that he had a long history of drinking and driving. No such history had been mentioned to the four psychiatrists he had seen, and he gave it after he gave evidence that he had had only one drink driving charge, which was in 2008. Mr Dahl proceeded to say that he was lucky he had not been charged before and gave an account of drinking and driving over many years including before the introduction of random breath testing. We find that this account was exaggerated and even fanciful, but we do not consider that Mr Dahl was intending to be misleading or dishonest.
28. Secondly, we do not accept Mr Colborne's submission that Mr Dahl had given reasonably consistent histories of symptoms to the four psychiatrists he had seen. In our view the histories of symptoms given to the four doctors were significantly different, which we infer was because of the nature of the questioning from the different doctors.
29. This is reflected, for example, by comparing the reports of Dr Keshava and Dr Dinnan who diagnosed GAD, and those of Dr Burman and Dr Roberts who did not diagnose an anxiety condition. Dr Burman commented that the only sign of anxiety during the interview was when Mr Dahl referred to the death of his friend, Shorty. Dr Roberts found no signs of anxiety. It is also illustrated by the different diagnoses in relation to alcohol dependence or abuse. Dr Keshava found sufficient symptoms to diagnose alcohol dependence. Dr Burman found symptoms appropriate to a diagnosis of alcohol abuse. Dr Dinnen could not give a diagnosis of either of those conditions on the history he elicited, but could suggest a possible diagnosis of alcohol abuse when given further information about Mr Dahl’s drink driving record during examination in chief. Dr Roberts did not diagnose either condition.
30. Another example of inconsistency appears in Dr Keshava's reports in 2001 and 2004. Dr Keshava repeats in both reports that Mr Dahl was in a task force area and "was shelled and mortared several times". At the hearing before us, it was uncontentious that there was only one occasion when Mr Dahl was at a base near a mortar attack.
31. For the above reasons, we are not reasonably satisfied on the evidence that Mr Dahl suffers symptoms which constitute a disease as defined in s 5D of the Act. We are not reasonably satisfied that he suffers GAD, or alcohol abuse or any other psychiatric condition.
32. We also do not accept that Mr Dahl has a war-caused alcohol habit, which was an alternative submission put by Mr Colborne. We do not consider that Mr Dahl's accounts of his consumption of alcohol over time, including in Vietnam or currently, are accurate. We accept Dr Roberts' opinion that his reported consumption of alcohol is inconsistent with his working history as a chef since he left the Army, in Australia, and while he was overseas for 12 years.
DECISION
33. For the above reasons, we affirm the reviewable decision in relation to claims for alcohol dependence/abuse and GORD. In relation to the diagnosis of schizoid personality disorder, we set aside that diagnosis and substitute the finding that Mr Dahl suffers from no psychiatric condition and affirm the decision to refuse Mr Dahl's claim for anxiety disorder.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly and Dr MEC Thorpe, Member.
Signed: ………[sgd].….…..
Steven Mulipola, Associate
Date of hearing: 4 and 5 March 2009
Date of decision: 29 May 2009
Solicitors for the Applicant: KCI Lawyers
Counsel for the Applicant: Mr C Colborne
Representative for the Respondent: Advocacy Section, Department of Veterans’ Affairs
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