DAVID CROOK and REPATRIATION COMMISSION

[2010] AATA 580

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 580

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1897

VETERANS' APPEALS  DIVISION		)
Re		DAVID CROOK

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr S H Toh, Member

Date5 August 2010   

PlaceSydney

Decision The decision under review is set aside and instead the Tribunal decides that Mr Crook suffers from alcohol dependence, major depression and anxiety disorder, all of which are war caused. The date of effect of this decision is 6 November 2007.

...................[sgd]............................

Ms N Bell, Presiding Member

CATCHWORDS - Veterans’ Entitlements – causation - anxiety disorder – alcohol abuse and/or depednance – post traumatic stress disorder – stressors

Veterans’ Entitlements Act 1986

McKenna v Repatriation Commission (1999) 86 FCR 144

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Gorton (2001) 110 FCR 321

REASONS FOR DECISION

Ms N Bell, Senior Member
Dr S H Toh, Member

1.      David Crook served in the Royal Australian Navy between 10 July 1960 and 18 September 1968. He was 16 years old when he joined the Navy.

2.      Mr Crook had the following operational service for the purposes of the Veterans’ Entitlements Act 1986:

·24 March 1966 to 24 April 1966 in Malaysia and Singapore on the Melbourne;

·25 April 1966 to 6 May 1966 in Vietnamese waters on the Melbourne; and

·25 May 1966 to 9 June 1966.

3.      Mr Crook suffers from major depression, a condition that has been accepted by the Repatriation Commission as war caused, and there is no dispute that he also suffers from alcohol abuse and/or alcohol dependence.  Mr Crook contends that he suffers from an additional psychiatric condition that has attracted various diagnoses by medical experts.  He maintains that all of his psychiatric conditions, including alcohol abuse and alcohol dependence, are war caused.

4.      The Commission, while accepting that Mr Crook suffers from major depression and alcohol abuse and/or dependence, initially contended that he suffers from bipolar disorder and denied that he suffers from generalised anxiety disorder or any other psychiatric condition.

5.      Later in the proceedings, the Commission abandoned its contention that he suffers from bipolar disorder.

issues

6.      The first issue for us to consider is the correct diagnosis of Mr Crook’s psychiatric condition or conditions.  We must be satisfied of this on the balance of probabilities.  In this respect, we note the Commission has accepted that Mr Crook suffers from war caused major depression and from alcohol abuse and/or dependence.

7.      It remains for us to consider whether Mr Crook’s conditions, including his alcohol dependence, are war-caused. In doing so we must apply the standard of reasonable hypothesis, in this case, by identifying the applicable Statement of Principles (SoP) and considering whether any hypothesis raised by the material before us conforms with one of the factors in the SoP.  If so, then we must consider whether we are satisfied, beyond reasonable doubt, that the condition is not war-caused. 

8.      In so doing we will follow the steps set out in Repatriation Commission v Deledio (1998) 83 FCR 82.

what is mr crook’s correct psychiatric diagnosis?

9.      In his evidence to the Tribunal, Mr Crook described the anxiety he felt when on HMAS Melbourne, watching destroyers manoeuvring in front of the ship in a way that brought to mind the Melbourne’s collision with the Voyager. He said he feared and had a horror of another collision. He said his sleep was disturbed, he was startled by loud noises and he had dreams of near collisions. He said he suffered “breakdowns” whilst onboard the Melbourne.

10.     Mr Crook said he started to drink at 18. He said he did not drink every day.  He said his consumption of alcohol increased dramatically once he was posted to the Melbourne.

11.     He described occasions when he was disciplined for alcohol related offences and he attributed the breakdown of his marriage to his drinking when on the Melbourne.

12.     

Dr Frukacz, Mr Crook’s treating psychiatrist since 2002, reported on

11 August 2003 that Mr Crook suffers from post traumatic stress disorder and from alcohol abuse and alcohol dependence. With respect to post traumatic stress disorder, Dr Frukacz identified the relevant stressor to be his posting to the Melbourne where he felt that he and his fellow sailors were exposed to danger (although in later reports additional stressors were reported), Dr Frukacz confirmed this diagnosis in reports of 24 May 2004 and 6 October 2005 and added, at that time, major depression. 

13.     Dr Frukacz described a range of symptoms that included depression, anxiety, constant worry, nightmares, avoidance, irritability, broken sleep, palpitations, difficulties with his marriages.  Dr Frukacz said Mr Crook began drinking 12 months after he joined the Navy and used alcohol to deal with his anxiety.

14.     

Dr Dinnen, psychiatrist, reported on 5 March 2009 that Mr Crook suffers from alcohol dependence but considered a diagnosis of post traumatic stress disorder was not sustainable because the stressor relied did not accord with the stressors set out in the relevant SoP (No. 5 of 2008). However, he said he could understand why

Dr Frukacz used post traumatic stress disorder as a working diagnosis and noted that it is a form of anxiety disorder consequent to a stressful experience.  He said he has no doubt that , clinically, Mr Crook’s alcohol dependence and underlying anxiety disorder date from service.

15.     Dr Dinnen described Mr Crook’s symptoms including anxiety, wanting to stay in bed, alcohol abuse, low tolerance of people, aggression and feeling helpless.  Mr Crook gave Dr Dinnen a history of three stressors on service, the main stressor being his service on the Melbourne.  He said his symptoms of anxiety began during this time and were exacerbated by his fear of another collision by the Melbourne.

16.     In oral evidence, Dr Dinnen described the apprehension Mr Crook felt on the Melbourne as anxiety.  He said it is not a clear cut syndrome, but rather a general feeling of apprehension that would currently be classed as anxiety disorder not otherwise specified.  Dr Dinnen said that Mr Crook’s alcohol dependence is his major clinical presentation, but that there is a history of underlying anxiety disorder and the presence of depression.  He described Mr Crook as having a range of clinical features that are encompassed by those three psychiatric diagnoses.

17.     When asked about any relationship between Mr Crook’s anxiety state on service and his alcohol dependence, Dr Dinnen said Mr Crook’s anxiety state when on the Melbourne either aggravated or precipitated his alcohol dependence.  He took a history of Mr Crook having begun to drink heavily on the Melbourne but also that he had been drinking for some time prior to that.

18.     Dr Lewin, psychiatrist, reported on 22 June 2009 that Mr Crook experienced symptoms of anxiety and depression including a range of bodily symptoms of arousal, agitation, a tendency to worry, irritability, feeling low, dispirited and lacking in confidence and energy. He referred to Mr Crook’s fear of being onboard the Melbourne. Dr Lewin also reported that Mr Crook experienced intermittent hypomania.

19.     Dr Lewin described Mr Crook’s alcohol consumption and associated social and employment problems and considered he met the diagnostic criteria for alcohol dependence.

20.     Dr Lewin’s diagnosis was Major Depression, Bipolar 2 Disorder and alcohol dependence. He did not diagnose post traumatic stress disorder or anxiety disorder because of “the pattern of his symptoms, the nature of those symptoms and the other clinical data.” 

21.     In his oral evidence, Dr Lewin said that in his view Mr Crook’s anxiety symptoms may have arisen as a result of the alcohol dependence or as a feature of the mood disorder which was, according to his diagnosis, bipolar disorder.  However, he said he could not be sure of this because it is very common for anxiety to precede the onset of alcohol dependence. Dr Lewin said he considered Mr Crook’s bipolar disorder to be of recent origin. He also said it is a genetic condition and not related to his alcohol dependence.

22.     In cross examination, Dr Lewin agreed that Mr Crook’s alcohol dependence was most likely preceded by alcohol abuse and that some of the events during his time on the Melbourne “may well be” consistent with alcohol abuse.

23.     The diagnostic criteria for generalised anxiety disorder are set out in SoP No.101 of 2007 and No. 1 of 2000 as follows:

"generalised anxiety disorder" means a psychiatric disorder (derived from DSM-IV-TR) with the following features:

A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and

B. The person finds it difficult to control the worry; and

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 during the previous six month period:

(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) difficulty falling or staying asleep, or restless unsatisfying sleep; and

D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and

E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and

F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;

24.     The symptoms reported by Mr Crook and Drs Dinnen and Frakacz satisfy the diagnostic criteria for generalised anxiety disorder as set out in SoPs No.101 of 2007 and No.1 of 2000.  We note, however, that Dr Dinnen considers that the appropriate diagnosis is anxiety disorder not otherwise specified.

25.     Anxiety disorder is also defined in the SoP No. 101 of 2007 to include anxiety disorder not otherwise specified.  The diagnostic criteria of that condition are set out in the SoP as:

"anxiety disorder not otherwise specified" means a psychiatric disorder (derived from DSM-IV-TR) with prominent anxiety or phobic avoidance that does not meet criteria for any specific anxiety disorder, adjustment disorder with anxiety, or adjustment disorder with mixed anxiety and depressed mood.

26.     

On the basis of the symptoms, including prominent anxiety, described in

Mr Crook’s evidence and that of Drs Dinnen and Frakacz, we conclude that

Mr Crook meets the diagnostic criteria for anxiety disorder not otherwise specified.

27.     We note that the diagnostic criteria in the SoP concerning post traumatic stress disorder (No. 5 of 2008) include experiencing an event that involves actual or threat of death or serious injury or threat to the person’s or another person’s physical integrity.  We do not consider that such an event was experienced by Mr Crook on operational service.

28.     In relation to bipolar disorder, we note that Dr Lewin’s report of Mr Crook occasionally being “as high as a kite” was contradicted by the evidence of Mr Crook and Dr Dinnen and was never reported on by Dr Frukacz, Mr Crook’s treating psychiatrist since 2002.  We consider this report of hypomania to be anomalous. We consequently find no symptom support for a diagnosis of bipolar disorder.

29.     On this basis we find that Mr Crook suffers anxiety disorder in addition to the conditions of major depression and alcohol dependence.

is mr crook’s anxiety disorder war caused?

30.     The hypothesis put forward by Mr Crook is that stress on service led to anxiety, followed by alcohol abuse and then alcohol dependence.  Each of the links in this hypothesised chain of causation must conform to a factor or factors in the SoP relevant to each condition (McKenna v Repatriation Commission (1999) 86 FCR 144).

31.     The relevant SoPs for anxiety disorder are the revoked No.1 of 2000 and 101 of 2007.  We note that we must apply the SoP currently in force, unless an applicant cannot succeed under that SoP, in which case we may consider the SoP in force at the time of the delegate’s decision. (Repatriation Commission v Gorton (2001) 110 FCR 321).

32.     For a condition to be found to be war-caused, the hypothesis raised must conform with a factor in the relevant SoP.  In relation to anxiety disorder, Mr Crook initially relied on the following factors in the current SoP (No.101 of 2007):

6(a)(ii) experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder;

…

6(a)(v) experiencing a category 2 stressor within one year before the clinical onset of anxiety disorder.

33.     Mr Crook later abandoned reliance on factor 6(a)(ii) at the hearing.

34.     A “category 2 stressor” is defined in SoP 101 of 2007 at paragraph 9 as:

"a category 2 stressor" means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:

(a) being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;

(b) experiencing a problem with a long-term relationship including: the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce;

(c) having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;

(d) experiencing serious legal issues including: being detained or held in custody, on-going involvement with the police concerning violations of the law, or court appearances associated with personal legal problems;

(e) having severe financial hardship including: loss of employment, long periods of unemployment, foreclosure on a property, or bankruptcy;

(f) having a family member or significant other experience a major deterioration in their health; or

(g) being a full-time caregiver to a family member or significant other with a severe physical, mental or developmental disability;

35.     

As to factor 6(a)(v) and a “category 2 stressor”, there is material pointing to

Mr Crook having had concerns in the work environment, those concerns being his fear of another collision by the Melbourne.  There is also material, in the evidence of

Mr Crook and Drs Dinnen and Frukacz, pointing to those concerns being chronic and causing ongoing distress, concern and worry.  To some extent, Dr Lewin’s evidence also points to this.

36.     On this basis, we find the hypothesis conforms with factor 6(a)(v) of the SoP.   It is unnecessary to consider the earlier SoP.

is mr crook’s alcohol dependence war-caused?

37.     The relevant SoPs for alcohol abuse or dependence are No. 76 of 1998, No 17 of 2008 and No. 1 of 2009.  Mr Crook relies on factor 6(a) of the current SoP (No. 1 of 2009):

6(a)     having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse.

38.     “Clinically significant psychiatric condition” is defined in the same SoP as:

"a clinically significant psychiatric condition" means any Axis 1 or Axis II disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, excluding alcohol-related disorders. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;

39.     We consider that Mr Crook’s evidence of his “breakdowns” and the evidence of Drs Dinnen and Frukacz as to his ongoing distress, concern and worry point to a condition that warranted ongoing management.

40.     As to clinical onset, Mr Crook’s evidence was that while he commenced to drink at approximately 18 years, when he joined the Melbourne he became anxious and stressed and he drank more to alleviate those symptoms. He gave a similar history to Drs Frukacz, Dinnen and Lewin.

41.     The Commission contended that Mr Crook’s alcohol consumption was a habit acquired at an early age and which developed to a high level of consumption not attributable to any other events or conditions. The Commission relied in particular on Mr Crook’s alcohol questionnaire completed in January 2002. In that questionnaire he indicates that he commenced drinking in late 1961, five years before he joined the Melbourne in 1966. On the form he said he did so in order to “join my friends, have fun, mental escape”. The form stated that he drank 7 to 8 middies every day and indicated that he increased his consumption during and after overseas trips when he would drink all he could get and, when in port, 10 to 20 cans.

42.     When, in cross examination, this was put to Mr Crook, he said it was not his writing on the form because it was filled out by an advocate and he, Mr Crook, did not pay close attention to the answers written by the advocate on the form. He said that in 1961 he did not drink every day and only drank as many as 7 to 8 middies when on shore.  He said the alcohol issue at sea was one bottle or one large can per day.  He said the reference to overseas trips and drinking 10 to 20 cans when in port was a reference to his time on the Melbourne. He said his drinking increased significantly when he joined the Melbourne and he would drink “a few bottles per night” and many more when in port. He recalled being locked in a cell for returning to the ship drunk and being docked pay because he had returned late or slept in.  He said he drank to calm his nerves. He said his drinking was in a large part responsible for the breakdown of his marriage while he was on the Melbourne.

43.     We note the reference to stress and being in Vietnam (at which time he was on the Melbourne) in Mr Crook’s smoking questionnaire which was completed at the same time and by the same advocate.

44.     We do not take the answers on the drinking questionnaire to invalidate or cancel out Mr Crook’s oral evidence about his drinking nor the histories he has given to psychiatrists. We accept that there are inaccuracies on the form, given that it was not filled out by Mr Crook. We prefer his direct oral evidence.

45.     We consider there is material pointing to the clinical onset of Mr Crook’s alcohol abuse during his time on the Melbourne. We particularly note the breakdown of his marriage at this time and his recurrent failures to perform duties onboard the Melbourne due to his alcohol induced state or his alcohol induced lateness.

46.     We note that Dr Lewin was the only expert witness who considered that Mr Crook’s alcohol abuse predated his psychiatric condition.  It was submitted that the alcohol questionnaire established that Mr Crook began drinking in 1961 and so his drinking came before his anxiety or other psychiatric condition.  While it appears not to be in dispute that Mr Crook did commence to drink in 1961, his oral evidence was that he did not drink to considerable excess (or in a maladaptive pattern), or experience recurrent failures (in his marriage or his work) until he was on the Melbourne. 

47.     In any event, even if Mr Crook’s alcohol abuse and/or dependence predated the clinical onset of his anxiety disorder, there remains material pointing to the increase in his drinking in order to relieve stress after he joined the Melbourne.  This aggravation or clinical worsening conforms with factor 6(g) of the SoP as follows:

6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service is:

…

(g) having a clinically significant psychiatric condition at the time of the clinical worsening of alcohol dependence or alcohol abuse;

48.     The Commission pointed to Mr Crook’s reliance, over the past few years, on other stressfull events in his service, including divers going over ship to guard against mines, the crashing of a helicopter, and the crash of a Sea Venom. The last two of these incidents did not take place during Mr Crook’s operational service. It was submitted that this raised questions about the reliability of Mr Crook’s evidence.  The Commission also raised inconsistencies and changes in Mr Crook’s evidence about beer rations when he was on the Melbourne and on the Warrego and about the place where four midshipmen had been drowned. It was also submitted that
Mr Crook had exaggerated a number of aspects of his evidence and that, in hindsight, he has magnified the degree of apprehension he felt on the Melbourne.

49.     While it may be that some aspects of Mr Crook’s evidence, such as the location of the drowning of the men, are contradicted by reliable records, or that his memory of some aspects of alcohol rationing onboard is faulty, we do not consider that that renders all of his evidence unreliable or the hypothesis unreasonable.  Similarly, earlier reliance by Mr Crook on other stressors outside his operational service does not serve to undermine the reasonableness of the hypothesis he raises now.

50.     We find the hypothesis raised by him to be reasonable and, subject to the fourth step in the Deledio analysis, that his alcohol dependence and anxiety disorder are war caused.

can we be satisfied beyond reasonable doubt that mr crook’s alcohol dependence and anxiety disorder are not war caused?

51.     The questions raised by the Commission about the reliability of Mr Crook’s evidence raise some doubt but not to the required standard. In the face of
Mr Crook’s evidence and that of Drs Dinnen and Frukacz, and to some extent
Dr Lewin, we cannot be satisfied beyond reasonable doubt that Mr Crook’s alcohol abuse and/or dependence and anxiety disorder are not war caused.

decision

52.     The decision under review is set aside and instead the Tribunal decides that Mr Crook suffers from alcohol dependence, major depression and anxiety disorder, all of which are war caused. The date of effect of this decision is 6 November 2007.

I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member, and Dr S H Toh, Member

Signed: ................................[sgd]..............................................
  Associate: Lloyd Doherty

Dates of Hearing  27 March 2010, 23 November 2009
Date of Decision  5 August 2010
Counsel for the Applicant         Mr Craig Colborne
Solicitor for the Applicant          Mr Greg Isolani
Counsel for the Respondent     Mr Gerald Purcell
Solicitor for the Respondent     Mr Nigel Bunn