Daines and Repatriation Commission
[2006] AATA 716
•18 August 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 716
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/693
VETERANS' APPEALS DIVISION ) Re RALPH HERBERT DAINES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member
Dr M E C Thorpe, MemberDate18 August 2006
PlaceSydney
DecisionThe decision under review is affirmed.
..................[sgd]...........................
Ms G Ettinger,
Presiding Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlement – Disability Pension - Operational Service – Reasonable hypothesis - Statements of Principles – Generalised Anxiety Disorder and Alcohol Abuse claimed - Diagnosis – Decision affirmed on the basis of the diagnosis.
Veterans’ Entitlements Act 1986 ss 9, 120, 120A 120(1) 120(3)
Statement of Principles concerning Alcohol Dependence or Alcohol Abuse - Instrument No. 76 of 1998
Statement of Principles concerning Anxiety Disorder Instrument No.1 of 2000
Repatriation Commission v Cooke (1998) 52 ALD 1
Budworth v Repatriation Commission [2001] FCA 317
Benjamin v Repatriation Commission [2001] FCA 1879, (2001) 70 ALD 622
Repatriation Commission v Keeley (2000) 60 ALD 401
Gorton v Repatriation Commission (2001) 63 ALD 723
Repatriation Commission v Deledio (1998) 83 FCR 82
Constable v Repatriation Commission [2005] FCA 928
White v Repatriation Commission [2004] FCA 633
Lees v Repatriation Commission [2002] FACFC 398
Stoddart v Repatriation Commission (2003) 77 ALD 67
Repatriation Commission v Budworth (2001) 66 ALD 285
Repatriation Commission v Gosewinckel [1999] FCA 1273
REASONS FOR DECISION
18 August 2006 Ms G Ettinger, Senior Member
Dr M E C Thorpe, Member
BACKGROUND
1. Mr Daines is a musician who plays the clarinet and saxophone. He joined the Royal Australian Navy aged 15, on 14 January 1961 and remained there until 13 January 1971. He has also served two periods with the Royal Australian Air Force, from 1971 to 1973 and from 1982 to 1990. Mr Daines served on operational service in the Navy as a member of the crew of HMAS Melbourne from 31 May 1965 to 22 June 1965, and in the Navy Band from 26 May 1970 to 4 June 1970. Following that he was in the RAAF as solo clarinettist and head of the reed section from 1971 to 1973 until the Band was disbanded. He returned to civilian life, rejoining the RAAF in 1982. He remained there until 1990. It was during the period of operational service in 1970 when Mr Daines was in the Navy that he claims he suffered the severe stressors which have, he says, caused his anxiety condition and alcohol abuse.
2. We noted that Mr Daines applied for post traumatic stress disorder to be accepted as war-caused in 2002, that the claim was not accepted. Then on 9 December 2003 he applied unsuccessfully to have anxiety accepted as war-caused. The Veterans Review Board affirmed the decision of the Repatriation Commission on 15 March 2005. It denied him his claim for anxiety on the ground that “no medical condition was present to answer the claim”. Mr Daines has applied to this Tribunal for review of the decision.
3. At the hearing before this Tribunal, oral evidence was given by the Applicant, his wife, Mrs C Daines, Dr B Keshava, psychiatrist, Dr R Wu, psychiatrist and Dr J Roberts, psychiatrist. We had before us documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T-Documents”), and various other tendered documents to which we have referred in these Reasons for Decision. The documentation before this hearing was unusual in that there was more than one version of the reports of Dr Wu (Exhibit A4), and an original and an altered version of Dr Keshava’s report (Exhibit A5), and three versions of the report of Writeway Research Service Pty Ltd (Exhibit R2).
4. The date of effect should the claim be successful would be 9 September 2003.
ISSUES BEFORE THE TRIBUNAL
5. The issue the Tribunal had to decide was whether Mr Daines’ claimed conditions as listed below, were war-caused pursuant to section 9 of the Veterans’ Entitlements Act1986 (“the Act”):
· Alcohol abuse
· Anxiety disorder
6. The Respondent did not accept that Mr Daines suffers anxiety disorder or alcohol abuse as claimed. Accordingly we had, before considering whether any condition Mr Daines suffers is war-caused, to first determine the diagnosis, whether Mr Daines suffers any of the conditions claimed, or indeed any others by reference to the tests in DSM-IV. The standard of proof for determining diagnosis is to the reasonable satisfaction of the Tribunal, pursuant to section 120(4) of the Act (Repatriation Commission v Cooke (1998) 52 ALD 1, Budworth v Repatriation Commission [2001] FCA 317 and Benjamin v Repatriation Commission [2001] FCA 1879, (2001) 70 ALD 622).
LEGISLATION
7. A decision in this matter requires consideration of relevant provisions under the Veterans’ Entitlements Act1986. The issue of whether a condition is war-caused is determined pursuant to section 9 of the Act which relevantly follows:
“9 War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…”
8. The standard of proof applying in the case of operational service is the reasonable hypothesis as provided for by section 120 of the Act, which provides as follows.
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war‑caused injury, that the disease was a war‑caused disease or that the death of the veteran was war‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by subsection 120A
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war‑caused injury or a defence‑caused injury;
(b)that the disease was a war‑caused disease or a defence‑caused disease;
…
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
…”
9. Section 120A of the Act deals with the Statements of Principles (“SoP”) and requires that an assessment of the reasonableness of an hypothesis must be undertaken with any Statement of Principles issued by the Repatriation Medical Authority (“the RMA”) or any other relevant determination or declaration under the Act. As relevant, section 120A of the Act states:
“120AReasonableness of hypothesis to be assessed by reference to Statement of Principles
…
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
...-
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
10. The standard of proof for diagnosing a condition prior to considering whether it is war-caused, is to the reasonable satisfaction of the Tribunal pursuant to section 120(4) of the Act which follows as relevant. (Repatriation Commission v Cooke (1998) 52 ALD 1; Budworth v Repatriation Commission [2001] FCA 317; Benjamin v Repatriation Commission [2001] FCA 1879.)
“120Standard of proof
…
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…”
STATEMENTS OF PRINCIPLES
11. In cases of operational service, the determination of whether a condition is war-caused is made pursuant to tests in sections 120 and 120A of the Act, and where applicable, the application of the Repatriation Medical Authority’s, SoPs. Principles for selection of these have been determined in the cases of Repatriation Commission v Keeley (2000) 60 ALD 401 and Gorton v Repatriation Commission (2001) 63 ALD 723. Accordingly, the relevant SoPs in this case were:
Statement of Principles concerning Alcohol Dependence or Alcohol Abuse - Instrument No. 76 of 1998
Statement of Principles concerning Anxiety Disorder Instrument No.1 of 2000
12. As Mr Daines has operational service, the determination regarding whether his claimed conditions are war-caused must be made taking into account the principles in Repatriation Commission v Deledio (1998) 83 FCR 82.These follow, but we must first determine to the Tribunal’s reasonable satisfaction pursuant to the tests Benjamin v Repatriation Commission (supra) Budworth (supra) and Cooke (supra) whether Mr Daines suffers either the conditions claimed, or indeed any other.
WHETHER MR DAINES SUFFERS ANXIETY DISORDER OR ALCOHOL ABUSE OR ANY OTHER PSYCHIATRIC CONDITION
13. In considering what if any diagnosis can be made in respect of Mr Daines, we were mindful that the claim for anxiety disorder had been rejected by the Respondent, and that the presence of any alcohol abuse had not previously been claimed, or decided by the Respondent. We accepted the argument of Mr Colborne of counsel, who represented Mr Daines, and who referred us to paragraphs 47 and 48 of Benjamin v Repatriation Commission (2001) 70 ALD 622 in support of his argument that the Tribunal is able to deal with the issue of alcohol abuse at this hearing. Those paragraphs are quoted below. Accordingly we have considered the claim for alcohol abuse as part of this matter.
47 Proceedings before the Tribunal sometimes give the appearance of being adversarial but, in substance, a review by the Tribunal is inquisitorial. Each of the Commission, the Board and the Tribunal is an administrative decision-maker. Each is under a duty to arrive at the correct or preferable decision in the case before it, according to the material before it. An inquisitorial review conducted by the Tribunal is one in which the Tribunal is required to determine the substantive issues raised by the material and evidence advanced before it. In doing so, it is obliged not to limit its determination to the "case" articulated by an applicant if the evidence and material that it accepts, or does not reject, raises a case on a basis not articulated by the applicant - Grant v Repatriation Commission [1999] FCA 1629 paragraphs [17]-[18], 57 ALD 1 at 6 and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287.
48 The facts that the claim originally lodged by the Veteran referred only to "PTSD" and that the medical impairment assessment by Dr Dunstan in support of it assessed only the disability of "post traumatic stress disorder" do not preclude the relevant decision-maker, be it the Commission or the Tribunal, from reaching a conclusion that the Veteran suffered from a different disability. Certainly, the Tribunal is entitled to be guided by the issues that the parties choose to put before it for its consideration. However, where a finding is made by the decision-maker, for example, that a veteran has contracted a disease, and it would be open to conclude that such a disease may be war caused, it would be incumbent upon the decision-maker to consider that possibility and make a decision concerning it.
14. In considering Mr Daines’ claims, we noted that he told us about being on board HMAS Melbourne during a collision with Evans during his Navy service in 1969. He described the fact he had been asleep, it being 3 am when collision emergency stations were announced. He described the noise, and resulting fear.
15. However, the main period of operational service upon which Mr Daines relied was his service in Vietnam from 26 May 1970 to 4 June 1970. He described how the Band of which he was a member, flew to the various bases and performed for the Navy personnel. He said that he had bad experiences, seeing in two weeks what others saw in two years. He said that they flew in DC3’s to outlying places. Mr Daines said that explosions would take place, strafing and bombing took place, and on one occasion there was a rocket attack during the Phan Rang Air Base concert. However the Band continued playing and performing he said. Mr Daines denied not having told Dr Roberts or other psychiatrists who examined him about these events.
16. He said that on one occasion the Band was packing up when he saw a helicopter explode after backing into another helicopter a few hundred metres away.
17. Mr Daines also told of travelling to Beria in open trucks in convoy and tendered a photograph (Exhibit A2) of such a truck. He said that the most frightening of the three incidents was during one of the convoys towards the end of the trip where he heard machine gun fire and thought he and his colleagues were being shot at.
18. In summary, Mr Daines referred to three stressors which he associated with the development of his anxiety disorder and alcohol abuse. They were:
19. The Phan Rang Air Base “attack” – We noted that Lieutenant Commander Farrell RAN (Rtd) wrote on 10 March 2006 (Exhibit R2), that:
“Regarding the incidents in Vietnam at Phan Rang Air Base, it can be stated that there was a mortar attack, confirmed by RAAF personnel, during an actual concert given by the on Thursday 28 May 1970. Whilst the was playing, the firing was heard and, as compere/conductor of the concert, I made the flippant remark that, with the aid of the Viet Cong gunners we could play the 1812 Overture, a piece that requires gunfire in its effects … The concert was not disrupted in any way and the large audience was magnanimous in its applause. As far as can be recalled, there was no further ‘attack’ during the Band ’s time at the base, and that one attack did not pose a real or major threat to the base…”
· The helicopter collision event
· The trip to Beria in the open trucks (Exhibit A2) when Mr Daines heard machine gun fire and thought they were under attack; (they actually were not as it turned out)
20. Mr Daines told us that his mental state had deteriorated since that time. He said that he had been placid before Vietnam, nothing used to bother him, but that he had become argumentative since, and drank more. He said that as a result he broke up with his wife, although the evidence was that he had met his present wife before that break-up. He said that after Vietnam he drank more, (acknowledging that drinking was part of the Band’s culture), suffered a stroke, worried a lot, and picked at his nails. He said that he found it difficult to talk to people, he was forgetful and could not concentrate well. Mr Daines said that he worried about everything, money, whether he would answer people correctly, his children, and what people thought of him. The worries Mr Daines described were corroborated by his wife, whose statement is Exhibit A3, and who has known him since 1977.
21. Mr Daines told us that his work in the Air Force was perfect between 1971 and 1973, but that in 1973 he had a performance assessment which showed him to be a “stirrer”. He said that did not know what was wrong because he is not a doctor, but referred us to an episode which is documented at T9/39, being a photocopy of a medical record dated 27 June 1970. He relied on that as an indication of the commencement of his anxiety. The document recorded that Mr Daines had presented in the sickbay in a very distressed state saying his messmates had upset him by disobeying his orders. He also told us, as was documented at T9, that he had drunk approximately six glasses of Bacardi and Coke on that occasion. The author of T9 also made a notation that Mr Daines suffered no psychiatric illness.
22. Mr Daines re-enlisted with the RAAF in 1982, and was very happy to do so, he said. After he left the RAAF in 1990 he played the clarinet in private clubs for two years. He did sales work for a winery company, to the point of being promoted to sales manager, retiring in 2003.
23. Dr Roberts, in his report dated 10 October 2005, recorded Mr Daines as having said: “I overall view my service as good, my son is in the Navy, I talked him into it – it’s a good life, I would recommend it to anyone.” When asked about that statement, Mr Daines agreed he had made it.
APPLICANT’S SUBMISSIONS
24. Mr Colborne submitted that the opinions of Drs Wu and Keshava who diagnosed anxiety disorder should be preferred over those of Drs Roberts and MacLean. He submitted that Dr Roberts’ opinion should be disregarded because he relied on physical symptomatology to diagnose anxiety disorder and found none in Mr Daines. Mr Colborne emphasised Mr and Mrs Daines’ evidence regarding physical manifestations of anxiety which were that Mr Daines has a bad temper, is nervous, sweaty and picks his fingernails, evidence which was not challenged. He submitted further that DSM-IV does not require physical symptomatology to be present for a diagnosis of anxiety disorder to be available. As to Dr Roberts’ opinion that Mr Daines did not suffer anxiety disorder because he did not say so; Mr Colborne submitted that should not be accepted because Mr Daines did not know he was suffering anxiety, and in any case he would not have wanted to label himself as having an anxiety disorder. Mr Colborne also referred to Dr Roberts’ observations that Mr Daines informed him he loved Navy life, and had recommended his son join, which Mr Daines has acknowledged. Mr Colborne emphasised that Mr Daines had also told Dr Roberts that “the two weeks in Vietnam were terrible”.
25. As to Dr MacLean, Mr Colborne commented that Dr MacLean saw Mr Daines for 20 minutes, a very short consultation indeed (T6/15).
26. Mr Colborne emphasised the Applicant’s reliance on Drs Keshava and Wu who had diagnosed anxiety disorder, and submitted that the alcohol abuse was consistent with the diagnosis. He emphasised Mr Daines had twice been counselled while in the Air Force. He also referred to the episode of distress when Mr Daines reported to sickbay on 27 June 1970 (T9/39 & 40).
27. Mr Colborne also referred us to the letters from colleagues of Mr Daines at T8, regarding the stressors/events in Vietnam. As to alcohol, Mr Colborne referred to Mr Daines having a maladaptive pattern of behaviour and engaging in hazardous driving.
28. Mr Colborne referred to what he submitted were the severe stressors Mr Daines suffered in Vietnam in 1970, being the three events we have listed above, the relevant SOP and the tests in section 120(1) and 120(3) of the Act. He referred us to the cases of Constable v Repatriation Commission [2005] FCA 928 and White v Repatriation Commission [2004] FCA 633. He submitted Mr Daines met the tests for war-caused anxiety disorder and alcohol abuse, and submitted that the decision of the Respondent be set aside.
RESPONDENT’S SUBMISSIONS
29. Mr O’Reilly, who represented the Respondent, submitted that the Respondent relied on the opinion of Dr Roberts, who considered that Mr Daines did not suffer anxiety disorder. Mr O’Reilly also referred to Dr Roberts’ detailed analysis of the clinical notes of Dr Nicol, submitting that they did not indicate a problem with alcohol, and observing that the many liver function tests carried out for cholesterol did not show liver damage.
30. Mr O’Reilly submitted that the diagnosis of anxiety disorder was made by Drs Keshava and Wu whose reports had both been altered. He submitted that Dr Keshava had made factual errors in his reports, including the attribution of the anxiety to the Melbourne collision which preceded Mr Daines’ operational service, and, that notwithstanding his diagnosis, Dr Keshava had provided no treatment for Mr Daines. He had also discussed alcohol dependence rather than abuse. Mr O’Reilly submitted that Dr Wu had not used the correct criteria.
31. In making submissions about section 120 and the application of the SoP, Mr O’Reilly spoke about clinical onset (Lees v Repatriation Commission [2002] FACFC 398). He submitted that Mr Daines did not meet the relevant tests and there had been no severe stressor (Stoddart v Repatriation Commission (2003) 77 ALD 67, and White (supra)). He emphasised Mr Daines’ re-enlistment in the Air Force, a successful career which followed that time, and lack of impairment.
CONCLUSIONS
32. In coming to a conclusion regarding whether Mr Daines suffers generalised anxiety disorder, alcohol abuse or any other psychiatric condition, we have taken his evidence into account, and that of the doctors who examined and treated him, and whose evidence and reports we have considered.
33. Only if we find that Mr Daines suffers anxiety disorder and/or alcohol abuse, or other psychiatric illness will it be necessary to progress to consider the tests in section 120(1) and 120(3) of the Act and decide whether any such condition is war-caused.
34. We have noted that the period of operational service on which Mr Daines relies is between 26 May and 4 June 1970 when he served in Vietnam, and that the events or stressors on which he relies for his claims of anxiety disorder and alcohol abuse are as follows:
· The Phan Rang Air Base “attack” – We noted that Mr Daines reported hearing the mortar fire. Lieutenant Commander Farrell RAN (Rtd) wrote on 10 March 2006 (Exhibit R2), that:
“Regarding the incidents in Vietnam at Phan Rang Air Base, it can be stated that there was a mortar attack, confirmed by RAAF personnel, during an actual concert given by the Band on Thursday 28 May 1970. Whilst the Band was playing, the firing was heard and, as compere/conductor of the concert, I made the flippant remark that, with the aid of the Viet Cong gunners we could play the 1812 Overture, a piece that requires gunfire in its effects … The concert was not disrupted in any way and the large audience was magnanimous in its applause. As far as can be recalled, there was no further ‘attack’ during the Band ’s time at the base, and that one attack did not pose a real or major threat to the base…”
· The helicopter collision event
· The trip to Beria in the open trucks (Exhibit A2) when Mr Daines heard machine gun fire and thought they were under attack; (they actually were not as it turned out)
35. In considering Mr Daines’ diagnosis, we considered what he had experienced in relation to the following two definitions of “severe psychosocial stressor” from the SoP No1. of 2000, Anxiety Disorder, and the definition of “experiencing a severe stressor” from the SoP No76. of 1998, Alcohol Dependence or Alcohol Abuse. We noted that recent case law has dealt with these concepts and clarified them somewhat, in particular, the cases of White v Repatriation Commission (supra) and Stoddart (supra).
“severe psychosocial stressor” means an identifiable occurrence that
evokes feelings of substantial distress in an individual, for example, being
shot at, death or serious injury of a close friend or relative, assault
(including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.
“experiencing a severe stressor” means, the person experienced,
witnessed or was confronted with, an event or events that involved actual
or threat of death or serious injury, or a threat to the person’s or other
people’s physical integrity, which event or events might evoke intense
fear, helplessness or horror.
36. Applying the case law, and considering both the objective events and Mr Daines’ subjective reactions as given in his evidence, we were satisfied that the event which Mr Daines found most stressful and which would be likely to qualify as a severe stressor in terms of the SoP for anxiety disorder and also alcohol abuse, was the collision between HMAS Melbourne and Evans in 1969. That however occurred, outside the period of Mr Daines’ operational service.
37. We were mindful that Mr Daines spent from 1962 to 1971 in the Navy, 1971 to 1973 in the Air Force, leaving when the Band was disbanded, and rejoined in 1982, staying there until 1990. The evidence before us indicated that Mr Daines has shown little social maladaptiveness as a result of alcohol consumption; he has moved from one long term marriage to another. He moved from the Navy to the Air Force, then re-enlisted in the Air Force, and after leaving in 1990 then worked in a successful career in an alcohol company, where he was promoted to sales manager. Mr Daines met his present wife while he was still married, and was later divorced from his first wife. We do not have evidence that the break-up occurred because of anxiety or alcohol problems. We were mindful also that he gave evidence of how much he enjoyed the Navy and that he encouraged his son to enlist.
38. We then considered the diagnosis of anxiety disorder. The following diagnostic criteria for generalised anxiety are from DSM-IV and correspond to those in the SoP No.1 of 2000.
Diagnostic Criteria for 300.02 Generalized Anxiety
Disorder
A. Excessive anxiety and worry (apprehensive expectation), occurring more
days than not for at least 6 months, about a number of events or activities (such
as work or school performance).
B. The person finds it difficult to control the worry.
C. The anxiety and worry are associated with three (or more) of the following six
symptoms (with at least some symptoms present for more days than not for the
past 6 months). Note: Only one item is required in children.
1. restlessness or feeling keyed up or on edge
2. being easily fatigued
3. difficulty concentrating or mind going blank
4. irritability
5. muscle tension
6. sleep disturbance (difficulty falling or staying asleep, or restless
unsatisfying sleep)
D. The focus of the anxiety and worry is not confined to features of an Axis I
disorder, e.g., the anxiety or worry is not about having a Panic Attack (as in
Panic Disorder), being embarrassed in public (as in Social Phobia), being
contaminated (as in Obsessive-Compulsive Disorder), being away from home or
close relatives (as in Separation Anxiety Disorder), gaining weight (as in
Anorexia Nervosa), having multiple physical complaints (as in Somatization
Disorder), or having a serious illness (as in Hypochondriasis), and the anxiety
and worry do not occur exclusively during Posttraumatic Stress Disorder.
E. The anxiety, worry, or physical symptoms cause clinically significant distress
or impairment in social, occupational, or other important areas of functioning.
F. The disturbance is not due to the direct physiological effects of a substance
(e.g., a drug of abuse, a medication) or a general medical condition (e.g.,
hyperthyroidism) and does not occur exclusively during a Mood Disorder, a
Psychotic Disorder, or a Pervasive Developmental Disorder.
39. Taking into account the indicia as listed above, we have noted the evidence of Mr and Mrs Daines that the Applicant is irritable, worries and picks his nails. There was no evidence regarding how often this occurs or to what extent. We noted that Mr and Mrs Daines’ reported Mr Daines has difficulties with concentration, although he did not exhibit those at the hearing, but if he suffers such difficulties, they are likely also to be effects of the CVA Mr Daines suffered in 1998. We are mindful however also that Mr Daines continued as sales manager of the wine company after that period until he retired in 2003. That appeared to us to be inconsistent with his alleged lack of concentration and anxiety.
40. The first event that Mr Daines relied on with regard to anxiety took place on 27 June 1970 when he went to the sickbay in HMAS Melbourne. We have already noted that the report prepared by the sickbay indicated Mr Daines was in a distressed state because his messmates had upset him by disobeying his orders, and noted that he had drunk approximately six Bacardi and Coke. The notation made was of no psychiatric illness.
41. We then considered the psychiatrists’ evidence and reports. The first of the psychiatrists’ reports available to us was in the T-Documents at T4, being a report of Dr N MacLean dated 8 November 2002 in which he opined that he could find no evidence of any primary psychiatric diagnosis in Mr Daines. He said that Mr Daines did not meet any of the criteria for generalised anxiety disorder, neither that there was any evidence of any other psychiatric or psychological diagnosis particularly any that was service related. Dr MacLean acknowledged that Mr Daines had a history of some modest depression over recent years associated with pressure of work, and his cerebro vascular accident.
42. We were mindful that Drs MacLean and Roberts, did not find that Mr Daines met the criteria for generalised anxiety disorder, while Drs Keshava and Wu did. We are satisfied from the evidence that Drs Keshava and Wu altered their reports to emphasise that Mr Daines suffers generalised anxiety disorder as a result of his war service and the experiences in Vietnam.
43. We accepted that Mr Daines consulted Dr Keshava every two months or so between 2003 and 2006, and noted that there has been no medication prescribed for him in connection with any anxiety at any time.
44. Dr Keshava’s reports were at T8/30 (dated 30 September 2004), and Exhibit A5. In his report dated 30 September 2004, Dr Keshava diagnosed generalised anxiety disorder, referred to severe stressors Mr Daines had experienced, and stated that he had started drinking heavily to allay his anxiety. He also opined that Mr Daines must have been in a severe anxiety state when he went to the sickbay in HMAS Melbourne on 27 June 1970. As noted above, the report prepared by the sickbay indicated Mr Daines was in a distressed state because his messmates upset him by disobeying his orders, that he had drunk approximately six Bacardi and Coke, no diagnosis of psychiatric illness was made. Accordingly, we preferred the contemporaneous sickbay record, and were able to draw the conclusion that Dr Keshava was incorrect in his diagnosis of Mr Daines having a severe anxiety state on 27 June 1970.
45. We noted that Dr Keshava had prepared two further reports, dated 14 July 2003 and 19 February 2004. In the report of 19 February 2004, Dr Keshava did not mention any diagnosis. He diagnosed generalised anxiety disorder in the earlier report of 14 July 2003. However, we were rather concerned that there was a sentence inserted into the report in the section of the report headed OPINION. In the version which was part of Dr Keshava’s notes which he faxed to the Tribunal after giving his oral evidence, there was a sentence, likely to have been inserted for reasons of the appeal process, which was: “His anxiety symptoms appears (sic) to have stemmed during his naval service when HMAS Melbourne collided with Evans on Vietnam Waters.” That sentence appears to have been added, and was not in the version of Dr Keshava’s report of 14 July 2003 which was sent to Dr Nicol, Mr Daines’ general practitioner, obtained on subpoena from Dr Nicol’s clinical notes. We were also mindful that Dr Keshava wrote that the anxiety symptoms appeared to have stemmed from the 1969 collision. We are mindful that that event preceded Mr Daines’ operational service and is not relevant to his present claim.
46. In his oral evidence which he gave by telephone link, Dr Keshava told us that, he saw Mr Daines regularly every two months from May 2003. He confirmed his earlier diagnosis of generalised anxiety disorder and said Mr Daines suffered alcohol dependence. We noted that this was said without reference to DSM-IV and that the claim was for alcohol abuse, not dependence. When asked his view of Dr Roberts’ opinion that for anxiety to be present there must be physiological symptoms, Dr Keshava said that anxiety could produce symptoms, such as panic or palpitations but not in everyone.
47. Due to the inaccuracies in Dr Keshava’s reports, his lack of reference to DSM-IV and the fact he did not treat Mr Daines with any medication even though he saw him over a period of some three years, we did not give his diagnosis of anxiety disorder, weight. We were not satisfied that he had made the appropriate diagnosis.
48. We moved then to consider Dr R Wu’s evidence. He is a psychiatrist who examined Mr Daines. His report dated 12 October 2005 had also been amended, and the amendment was in order to include reference to the relevant Statement of Principles, likely to have been for purposes of the claim. It was Exhibit A4. There were some factual errors in the report, and whilst Dr Wu recorded what he described as traumatic experiences Mr Daines had while in Vietnam in May and June 1970, (being, rocket and mortar attacks while playing at Phan Rang airbase, machine gun fire on the way to Beria in open trucks, and the helicopter incident), Dr Wu did not record any reactions to those events.
49. Dr Wu gave oral evidence at the hearing and told us that alcohol consumption can merit a separate diagnosis, but that in Mr Daines’ case it was a consequence of his generalised anxiety disorder. He recorded Mr Daines as saying he drank to cope with his anxiety. Dr Wu referred to the tests in DSM-IV when making his diagnosis, saying that Mr Daines exhibited appropriate features, such as worry about being in a crowd, insomnia, irritability and difficulties with concentration.
50. Dr Wu stated in his report under the heading of “Work incapacitation” that Mr Daines was promoted to the position of sales manager of a wine company and that this suggested that “his work capacity was largely unaffected by his generalised anxiety symptoms or alcoholism.” When asked whether the good work history was inconsistent with the diagnosis of generalised anxiety disorder, Dr Wu said that people can work with pain and suffering.
51. We were not satisfied that Dr Wu had considered Mr Daines’ situation sufficiently in order to be able to make the diagnosis of anxiety disorder, and we were concerned with the errors in his report. Accordingly we preferred the evidence of Dr Roberts whose reports we have discussed in the paragraphs which follow.
52. Dr J Roberts who is a psychiatrist, also gave oral evidence. His reports dated are dated 10 October 2005 (Exhibit R3), and 28 February 2006 (Exhibit R4). Dr Roberts relied on the fact Mr Daines did not report mental problems, adding that Mr Daines had told him however that he did “silly things”. Dr Roberts also said that Mr Daines had no symptomatology consistent with heightened anxiety and therefore found that Mr Daines suffered no anxiety condition, and no psychiatric condition.
53. Dr Roberts considered that Mr Daines’ alcohol consumption was excessive, but that the diagnosis of alcohol abuse or dependence could not be made. Dr Roberts commented on Dr Nicol’s clinical notes (Exhibit A6), which spanned the years 1995 to 2001, and referred us to various entries for consultations with Mr Daines, and the occasional advice given to him, but no plan, neither treatment towards the control of alcohol consumption, indicating perhaps that it was not at a critical level. Dr Roberts also indicated that liver function tests carried out over the period showed no abnormalities. The tests appeared to have been carried to monitor cholesterol levels.
54. Dr Roberts referred to the application of the relevant sections of DSM-IV with regard to the diagnosis, and commented for example about the evidence regarding irritability by saying that it could occur in the absence of generalised anxiety disorder and as a consequence of the CVA.
55. Dr Roberts quoted Mr Daines as having said: “I overall view my service as good, my son is in the Navy, I talked him into it – it’s a good life, I would recommend it to anyone”, a statement Mr Daines which the Applicant agreed he had made.
56. Although we do not reject Dr Roberts’ diagnosis, and in fact accepted his opinion that Mr Daines does not suffer anxiety disorder, we rejected Dr Roberts’ view that in order for the diagnosis of generalised anxiety disorder to be made, there must be physical symptomatology because DSM-IV does not require that.
57. We are also mindful that Mr Daines consumes more than desirable quantities of alcohol, and has done so for a long time until curtailed partly by the CVA. Alcohol consumption was part of the culture in the Navy and Air Force, and certainly in the entertainment industry of which Mr Daines was a part through his participation in the Navy and Air Force Bands, and in clubs. However the liver function tests conducted regularly and recorded by Dr Nicol for cholesterol indicated no liver damage over a period of some six years from 1995 until 2001. We were also satisfied that the entertainment industry in the Navy, and subsequently in clubs and in alcohol sales is a culture where alcohol is part of daily life. Accordingly we were satisfied that Mr Daines’ alcohol consumption was not as a result of the relevant stressors he claimed in Vietnam in 1970, neither were we satisfied that his consumption increased as a result of experiences he had in those weeks in Vietnam.
58. We noted from the SoP No.76 of 1998 that alcohol abuse is defined as follows:
The diagnostic criteria for alcohol abuse are those specified in
DSM-IV, and are as follows
A. A maladaptive pattern of alcohol use leading to
clinically significant impairment or distress, as manifested
by one (or more) of the following, occurring within a 12-
month period:
(1) recurrent alcohol use resulting in a failure to fulfil
major role obligations at work, school, or home
(2) recurrent alcohol use in situations in which it is
physically hazardous
(3) recurrent alcohol -related legal problems
(4) continued alcohol use despite having persistent or
recurrent social or interpersonal problems caused or
exacerbated by the effects of alcohol
B. The symptoms have never met the criteria for
alcohol dependence.
The definitions for alcohol dependence and alcohol abuse exclude
acute alcohol intoxication in the absence of alcohol dependence or
alcohol abuse.
Alcohol dependence or alcohol abuse attracts ICD-9-CM code 303
or 305.0.
59. When we considered the above noted criteria we were mindful that we had no evidence before us to satisfy us that Mr Daines exhibited a maladaptive pattern of alcohol use leading to impairment or distress in terms of DSM-IV.
60. We were satisfied that Mr Daines suffers some irritability, and that he worries about money and his children, and accepted that some of the symptoms he suffers may be attributable to the CVA. We agreed with Drs MacLean and Roberts that Mr Daines does not suffer anxiety disorder, alcohol abuse or any other psychiatric condition as defined in DSM-IV. We could not be satisfied to the requisite standard (reasonable satisfaction of the Tribunal of section 120(4) of the Act), as per Repatriation Commission v Cooke (supra), Repatriation Commission v Budworth (2001) 66 ALD 285 and Repatriation Commission v Gosewinckel (1999) 59 ALD 690, that Mr Daines satisfies the tests for diagnosis of the condition of anxiety disorder, alcohol abuse or other psychiatric condition as defined in DSM-IV.
61. If we had found that the Veteran suffers alcohol abuse, anxiety disorder or some other relevant diagnosable condition, then in determining whether the conditions are causally related to his service in accordance with sections 9,120(1), 120(3) and 120A of the Act, we would have to follow the steps as outlined by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 as follows:
“…the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person [is] as follows:
1The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
62. However that did not arise because of our finding that Mr Daines does not satisfy the tests for diagnosis of anxiety disorder, alcohol abuse or other psychiatric condition as defined in DSM-IV.
DECISION
63. The decision under review is affirmed.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member G
Ettinger and Dr M E C Thorpe, MemberSigned: sgd
AssociateDates of Hearing 31 July & 1 August 2006
Date of Decision 18 August 2006
Counsel for the Applicant Mr C Colborne
Advocate for the Respondent Mr J T O’Reilly
0
14
0