Davison and Repatriation Commission
[2004] AATA 99
•5 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 99
ADMINISTRATIVE APPEALS TRIBUNAL N2002/370
VETERANS’ APPEALS DIVISION
Re: John DAVISON
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: P.J. Lindsay, Senior Member, Dr M.E.C. Thorpe, Member
Date: 5 February 2004
Place: Sydney
Decision:The tribunal affirms the decision under the review.
. . . . . . . . .. . . . . . . . . . . . . . . .
Senior Member
© Commonwealth of Australia (2004)
CATCHWORDS
VETERANS’ AFFAIRS – entitlement to disability pension – post traumatic stress disorder, anxiety disorder, dissociative disorder – applicant experienced severe stressors - diagnosis of applicant’s symptoms – decision affirmed
Veterans’ Entitlement Act 1986, ss. 9, 120, 120A, 196B
Repatriation Medical Authority Statements of Principles:
- Instrument No. 15 of 1994 concerning Post Traumatic Stress Disorder
- Instrument No. 3 of 1999 concerning Post Traumatic Stress Disorder
- Instrument No. 1 of 2000 concerning Anxiety Disorder
- Instrument No. 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse
Fogarty v Repatriation Commission (2003) 37 AAR 363
Benjamin v Repatriation Commission (2001) 34 AAR 270
Repatriation Commission v Deledio (1998) 49 ALD 193
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
REASONS FOR DECISION
P.J. Lindsay, Senior Member
Dr M.E.C. Thorpe, Member
1. John Davison served in the Royal Australian Navy for 21 years, from 9 January 1964 to 19 February 1985. He seeks a disability pension under the Veterans’ Entitlements Act 1986 (the Act) in respect of incapacity from war-caused diseases contracted during his operational service. Mr Davison had the following periods of operational service while in HMAS Sydney during the Vietnam war:
- 20 December 1967 to 3 January 1968;
- 17 January 1968 to 16 February 1968;
- 27 March 1968 to 26 April 1968;
- 21 May 1968 to 13 June 1968.
Mr Davison served a period of eligible defence service from 7 December 1972 until his discharge. He was then a warrant officer, the highest non-commissioned rank.
2. Mr Davison’s application to the tribunal is for review of a decision made by the Repatriation Commission on 10 September 2001. The Commission refused his claim lodged on 2 April 2001 for disability pension for incapacity due to post traumatic stress disorder (PTSD), anxiety disorder and dissociative disorder or reaction. On 8 February 2002 the Veterans’ Review Board (the Board) affirmed the Commission’s decision.
evidence
3. Mr Davison’s evidence was that he joined the Navy in 1964 at age 16½. He trained as a shipwright, which required him to do many kinds of work including carpentry, welding, plumbing and painting. He re-enlisted in 1976 and was discharged in 1985 at his own request. After having spent around half of his 21 years of service at sea, he thought it was in his children’s interest to have their father at home. He then worked for IBM in building maintenance for 9½ years. He currently works as a handyman at a retirement village and for a couple of hours a day in a business venture involving computers.
4. He said he had a number of episodes of anxiety during his Navy career. When things did not go right, he would become angry, irritable and anxious. He did not report any incidents that caused him anxiety. His evidence was that his anxiety gradually became worse. His current symptoms include a quick temper, difficulty in showing emotions, a feeling of emptiness, violent mood swings, poor sleep, and being socially withdrawn with a dislike of crowds and preferring the company of ex-servicemen.
5. At the time of making his claim, Mr Davison completed an alcohol questionnaire (T6). He reported a change in his consumption of alcohol as a result of his service in Vietnam. He began binge drinking. His binge drinking increased following the collision between HMAS Melbourne and USS Frank E Evans in 1969 but decreased from 1972 to 1974 because of family commitments. He stated that he currently drinks about 4-5 beers on weekends and added “Binge drinking usually refers to weekends. The amounts vary due to the state of my mind & family commitments etc. I believe I have it under control but occasionally I will drink whatever I can find or until I drop due to depression.” In his oral evidence, Mr Davison said that once a week he and his wife will visit the club and he will probably have 7 or 8 schooners. His wife will drive them home. He said that he also drinks at home at other times but he does not drink every day. He believes that he is able to control his drinking.
6. There were two incidents that happened on periods of operational service that caused Mr Davison considerable distress. From his first period in Vung Tau harbour, Mr Davison recalled that HMAS Sydney was at anchor and closed up in damage control state as part of Operation Awkward State 2. He was at his damage control station, located on the waterline. The ship’s company was tense and fearful. A sudden, very loud explosion caused him involuntarily to evacuate his bowels. After being permitted to leave his station and visit the head to clean himself up, he returned to his work. He was too embarrassed to report the incident. HQ1 damage control informed him very quickly that the explosion was caused by scare charges in use to defend the ship against attack by enemy divers and that he should not be alarmed. Mr J. Marsh, the advocate from the Department of Veterans’ Affairs representing the respondent, asked Mr Davison why he did not refer to this incident (the scare charge incident) either in his claim or to Dr Westerink, a psychiatrist he began seeing in February 2001. His response was that he had forgotten about the incident until his memory was triggered by something he heard during a speech at a reunion on Remembrance Day 2001.
7. The other incident happened while the applicant was raising an accommodation ladder (the ladder incident). Mr Davison described the accommodation ladder as being more a series of wooden steps and two platforms. It has handrail ropes and stanchions, and legs that are put into the side of the boat to keep it rigid. It was lowered down from three deck level, which is about 12 metres above the sea.
8. The accommodation ladder had been lowered down the side to provide boat access to and from the Sydney while at anchor in Vung Tau harbour. Around mid afternoon, a pipe required him to ‘close up at the rush’ to the ladder bay. Mr Davison explained that the pipe suggested to him that there was an emergency. In oral evidence retired Navy Captain H.A. Josephs disagreed and said that in his experience, such an order simply requires a task to be attended to with alacrity. At any rate Mr Davison said he was required to go down the ladder to the lower platform and remove its legs from the side of the ship. As he was working, he heard explosions in the water from scare charges. He saw the sea boiling under the stern caused by propeller movement and the ladder was rocking. The propeller was about 10 metres from him. As he was going back up the steps he felt the ladder being raised to the horizontal by other members of the work party. He crawled to its top platform and back onto the deck. He believed the ship was increasing its speed even though he had not completed his task. His colleagues were shouting at him to finish quickly. By the time he got back on deck he was in a lather of perspiration. He thought the task had taken him about 4 or 5 minutes. He said he was absolutely terrified as he climbed up the ladder on all fours. He was very angry that he had been exposed to such danger. He said he has recollections about this incident frequently.
9. Mr Davison said that later that night, he heard a rumour that the ship made her hasty departure from Vung Tau because of the threat of attack by enemy divers. Despite there being no record in official documents of any attacks against the Sydney while on tours of duty in Vung Tau harbour, in the applicant’s opinion it had been attacked, unsuccessfully. He would concede only that the Sydney was not damaged during these attacks.
10. At the suggestion of his brother in law, who works for the Vietnam Veterans’ Association, in February 2001 Mr Davison consulted Dr Westerink a psychiatrist at the St John of God Hospital in Richmond. Dr Westerink’s report dated 19 February 2001 (T5-21) referred to the applicant’s self-perception of gradual change that began while he was in the Navy. He became irritable and angry. This continued during his employment at IBM where his behaviour was abusive and eventually he was referred to the company’s psychologist. The St John of God clinical notes (exhibit R3) record that Mr Davison “felt shattered” by his retrenchment from IBM which he attributed in part to his mood swings. This caused an increase in his drinking. He also became socially withdrawn, with poor memory and concentration. He told Dr Westerink that he has gaps in his memory, specifically referring to his experience in HMAS Melbourne at the time of its collision with the USS Frank E. Evans on 3 June 1969. There was great loss of life. He worries excessively and sleeps poorly but does not recall nightmares or dreams. However, there are intrusive memories from Vietnam.
11. Dr Westerink recorded episodes of binge drinking to the extent of alcohol poisoning. Dr Westerink reported that the applicant becomes very depressed at times and feels that he has no future. Dr Westerink diagnosed generalised anxiety disorder, PTSD and dissociative disorder.
12. In 2001 Mr Davison participated in closed group treatment for PTSD at the St John of God hospital. The St John of God clinical notes (exhibit R3) referred to individual counselling sessions for a trauma Mr Davison suffered during operational service in Vung Tau harbour and the trauma he later suffered from the Melbourne – Evans collision. An historical report (exhibit R5) prepared by Captain H.A. Josephs, speculated that Mr Davison’s skills as a shipwright would have been required after the Melbourne – Evans collision to check and contain damage to Melbourne’s hull and to provide technical support for other aspects of the rescue operation. In evidence, Mr Davison said that during his in-patient treatment he was able to recollect things that happened in the twelve hour period immediately following the collision, that had hitherto been lost to him. It was very painful to do so. However, he said that the treatment that had allowed him to open those doors, had also helped to close them again.
13. The Commission arranged for Mr Davison to be interviewed by Dr R Haik, consultant psychiatrist, on 11 July 2002. Dr Haik’s report of the interview (exhibit R7) disagreed with Dr Westerink’s diagnosis. Instead Dr Haik considered the applicant to be suffering from a mild dysphoria or mixed anxiety-depression, found in a normal spectrum of human emotion, which is probably being benefited by the moderate dosage of Prozac prescribed since December 2001.
14. Dr Haik would not diagnose PTSD because it is a serious condition “… where those exposed to a life threatening stress exude an ongoing expression of anxiety, an innate warning to be ‘on guard’, based upon intrusive memories, persistent avoidance, and other aspects of hyperarousal. This condition is sufficiently debilitating for there to be clinically significant distress or impairment in social, occupational or other important areas of functioning.” That diagnostic criterion of significant distress or disablement was in contrast with Mr Davison’s successful Navy career. Moreover his participation in regular navy reunions, frequent attendance at the RSL club and weekly masonic lodge meetings demonstrated that he had a busy and rewarding social life. He relates well with his wife and three adult children, all of whom reside at the family home.
15. Mr Davison spoke tactlessly to his female supervisor at IBM and this led to his being required to attend counselling by a psychologist. Dr Haik had noted that Mr Davison said he was shy with women and his previous IBM supervisor had been a “real gentleman” with whom he got on well. Considering also the applicant’s attendance at male lodge meetings and reunions with former servicemen, Dr Haik thought a plausible explanation for the tactless behaviour with his new supervisor was that Mr Davison’s coping mechanisms began to decline once he was working for a female supervisor, as he has difficulty in dealing with women. In his oral evidence Mr Davison emphatically denied having any difficulty in getting on with women.
16. Mr Davison said that Dr Haik conducted the interview in a manner that was very different to the way he was interviewed by Dr Westerink and Dr A Dinnen, consultant psychiatrist. He described this manner as belligerent and it made him uncomfortable throughout the 1½ hour interview. Mr Davison thought that Dr Haik’s practice of writing down his answers to questions without looking at him showed a lack of interest. Dr Haik’s tone of voice and occasional shaking of his head implied disbelief regarding Mr Davison’s answers. Mr Davison wanted to get the interview over with and said he may not have handled himself well during it. Although he started to shake he made no complaint to Dr Haik at the time. Afterwards he sat down in a park for a couple of hours to regain his composure. Dr Haik’s evidence, however, was that Mr Davison was cooperative, pleasant and polite.
17. At the request of the applicant’s legal adviser, Mr Davison was interviewed by Dr Dinnen on 12 September 2002. Dr Dinnen’s report of 20 September 2002 (exhibit A1) noted that Mr Davison gets anxious, meaning that he worries about little things, and he sometimes feels cold and shakes. Symptoms of anxiety have been present since the 1970s. Mr Davison said he had felt depressed for about six months prior to his consulting Dr Westerink but he could not identify the cause. Dr Dinnen took a history of heavy drinking that started from the time of the applicant’s periods of service in Vietnam. However, there were no disciplinary problems and Dr Dinnen concluded that Mr Davison’s career of promotions had been admirable. Other symptoms include a tendency to withdraw and a dislike of crowds. There was a gap in his memory about the Melbourne-Evans collision but he could recall the ladder incident. Dr Dinnen reported that the applicant does not remember any particular dreams.
18. Dr Dinnen did not feel that Mr Davison’s pattern of alcohol consumption constituted alcohol dependence but it did amount to alcohol abuse. The symptoms he referred to were the applicant’s heavy drinking that started at the time of his service in Vietnam and continued during service especially while he was overseas. He instanced the applicant’s bout of alcohol poisoning in 1984. The current history was of heavier consumption on week-ends and trying not to drink during the week.
19. In addition, Dr Dinnen diagnosed an anxiety disorder from the time of the applicant’s service in Vietnam. Dr Dinnen summed up as follows (exhibit A1):
The presentation of psychiatric symptoms in the mid 1970s follows what I believe is an aggravation of that preexisting condition by his involvement with the Melbourne/Evans collision in 1969. He could be regarded therefore as suffering from post traumatic stress disorder as a consequence of the Melbourne Evans collision.
Therefore I think the overarching diagnosis is that of post traumatic stress disorder. I believe this developed in 1969 and the patient was predisposed to that condition by his service in Vietnam in 1967/68. Psychoactive substance abuse (alcohol) appears to date from his service in Vietnam and was aggravated by the Melbourne/Evans collision and the development of post traumatic stress disorder.
Dissociative symptoms and signs are part of post traumatic stress disorder in my opinion and do not require a separate diagnosis.
20. There is a brief note in Mr Davison’s service medical records (exhibit R1) of a consultation with a medical officer on 2 October 1975. It recorded that Mr Davison had been experiencing anger and irritability for the previous 3 to 4 months. His home life was stable and there had not been any distressing incidents at work. There was a provisional diagnosis of personality disorder, which Dr Dinnen observed was contradicted elsewhere in that document by a diagnosis of anxiety. Still Dr Dinnen would agree that the references to “no emotional lability” did not suggest violent mood swings and “sleep OK” indicated there were no problems with sleeping, at least at this point. Dr Dinnen added that the history he received at interview on 12 September 2002 referred to violent mood swings in the years following service. Dr Dinnen’s report (exhibit A1) noted that it was during the applicant’s employment at IBM that he was directed to attend psychological assessment because he had been abusing people and shouting at them.
21. A later attendance on a Navy medical officer on 17 June 1977 noted that the applicant had attended at the suggestion of his wife, who was concerned about his sleepiness of a morning. The Navy medical officer diagnosed lethargy. Dr Dinnen thought that this record shed little light on any difficulty Mr Davison may then have been experiencing in sleeping at night. He agreed, however, that the report did not suggest sleeplessness was a problem in mid 1977.
consideration
22. It was not disputed by the parties that Mr Davison’s period of eligible defence service is not relevant to this application.
23. Mr Sherlock, the Legal Aid officer who represented Mr Davison, submitted that there are two possible diagnoses of the applicant’s symptoms. There is Dr Dinnen’s diagnosis of an overarching PTSD that includes elements of anxiety and alcohol abuse. That is, the applicant developed an anxiety disorder with associated alcohol abuse from the traumatic incidents he experienced in Vung Tau harbour. In turn, the anxiety contributed to the PTSD that emerged clearly from the Melbourne-Evans collision. Alternatively, Mr Sherlock submitted the diagnosis is generalised anxiety disorder with associated alcohol abuse. He submitted that the tribunal should place no weight in Dr Haik’s opinion. In his submission, the manner in which Dr Haik conducted his interview and the conclusions he reached without first asking the applicant whether he agreed with the premises for those conclusions, demonstrated that his opinion was flawed.
24. For the respondent it was submitted that Mr Davison does not satisfy the diagnostic criteria for PTSD. Alternatively, if the tribunal was satisfied that Mr Davison suffers from PTSD, the relevant trauma was the Melbourne-Evans collision, which did not occur during a period of operational service or defence service. Further Dr Dinnen’s diagnosis of alcohol abuse could not be justified by reference to the relevant diagnostic criteria. The hypothesis connecting generalised anxiety disorder with service could not be made out. There was insufficient evidence to allow the tribunal to conclude that there was clinical onset during 1970, that is within two years of experiencing the severe stressor on operational service.
25. Tribunal member Dr Thorpe reminded Mr Sherlock during the hearing that the tribunal is well versed in the manner in which doctors conduct consultations. We do not accept Mr Sherlock’s submission that Dr Haik’s interview methods impede his ability to obtain an accurate history or description of symptoms. In addition, we see no fault in Dr Haik’s exercise of professional judgment in concluding that the applicant’s shyness around women, his preference for the mateship culture of the Navy work environment and for male company generally, matters he was informed about by the applicant, constitute a “plausible” explanation for the applicant’s coping mechanisms breaking down while he was at IBM and working for a female supervisor. That is the doctor’s opinion and we have no reason to doubt that he genuinely came to that conclusion. Finally on this subject, we note Dr Haik’s evidence that he worked at the Department of Veterans Affairs for ten years, where he interviewed a wide range of veterans. He worked there at the same time as Dr Dinnen, whose evidence was that they attended medical school and specialist training together. As Dr Dinnen said, they shared parallel careers. There is no reason to prefer Dr Dinnen’s evidence solely on the basis of his experience.
26. Mr Davison’s claim for pension for incapacity due to PTSD, anxiety disorder and dissociative disorder or reaction is related to a period of operational service. Accordingly the standard of proof in respect of causation of a war-caused disease is that prescribed by s.120(1) of the Act. We will determine, pursuant to s.120(1), that his condition, for which a diagnosis may be made, was war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. We will be so satisfied if of the view that the material before us does not raise a reasonable hypothesis connecting that condition with the circumstances of his service: s.120(3). Section 120A of the Act requires us to assess the reasonableness of the hypothesis in accordance with any Statement of Principles (SoP) issued by the Repatriation Medical Authority (the RMA). We will refer to the relevant SoPs in force at the time of decision and, if necessary by reference to SoPs in force on 10 September 2001, the date of the Commission’s decision.
27. Before considering whether the material raises a reasonable hypothesis, we will deal with the dispute regarding the appropriate diagnosis for Mr Davison’s symptoms. This is a matter that we are required to determine to our reasonable satisfaction under s.120(4): Fogarty v Repatriation Commission (2003) 37 AAR 363. Also relevant to this issue is the following passage from the judgment of the Full Federal Court in Benjamin v Repatriation Commission (2001) 34 AAR 270:
The primary judge observed that, on all the evidence before the tribunal, exposure to a traumatic event was the primary criterion required for the diagnosis of post traumatic stress disorder. The tribunal made its diagnosis by reference to SoP 15 of 1994. His Honour correctly held that to be impermissible, as the scheme of the Act contemplates that SoPs be used to determine the standard of proof. SoPs are not relevant to the question of diagnosis. However, the similarity of the definition of SoP 15 of 1994 to the criteria in DSM-IV led his Honour to the conclusion that the Tribunal’s error was of no practical consequence whatsoever. (at 280)
28. Further, it was stated in Benjamin that there was “no practical consequence whatsoever” (at 280) in any difference between the definition of ‘post traumatic stress disorder’ in SoP 15 of 1994 and in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV). The tribunal notes that the definition of ‘post traumatic stress disorder’ is the same in SoP 3 of 1999 and SoP 15 of 1994, both being Statements of Principles concerning Post Traumatic Stress Disorder. It is appropriate, therefore, for us to refer to clause 2(b) in SoP 3 of 1999 which defines ‘post traumatic stress disorder’ to mean:
a psychiatric condition meeting the following description (derived from DSM-IV):
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii)sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning,
attracting ICD-9-CM code 309.81.
29. There is disagreement among the experts as to whether Mr Davison suffers from PTSD. Dr Haik maintains that Mr Davison did not experience a traumatic event, either during the scare charge incident or the ladder incident. When asked why he remained in the Navy after experiencing these incidents and the Melbourne-Evans collision, Mr Davison told Dr Haik that he was young and felt bulletproof and nothing could harm him. Dr Haik concluded that these experiences were not frightening for the applicant at the time they occurred. Dr Haik’s report (exhibit R7) stated “ It is not feasible to propose that fear somehow eluded the barrier of invincibility and then remained deeply buried in the unconsciousness to appear decades later. Mr Davison’s experience on the ladder was one of 5 minutes duration. It was nothing like the DSM IV examples that provoke PTSD such as terrorist attack, torture, being held hostage, violent personal attack, combat situations etc.”
30. There may well not have been any swimmer activity as Sydney departed from Vung Tau Harbour but we accept Mr Davison’s evidence that at the time he was required to detach the legs to the accommodation ladder, he thought there was an emergency. He said he had heard scare charges and had seen the water boiling around the turning propellers. He said he was terrified and felt very scared about the consequences of falling from the ladder into the water. Mr Davison mentioned the incident to the counsellor at St John of God Hospital (exhibit R4) and Dr Dinnen considered the incident to be a severe stressor. We do not agree with Dr Haik’s view that the ladder incident was not a traumatic event.
31. Dr Dinnen considered that the sinking of the Evans would also have had a major impact on Mr Davison. We agree and note that exhibit R4 records a discussion of ways that Mr Davison might cope with his image of a survivor from the Evans.. We conclude, therefore, that the collision was also a traumatic event for him as defined in diagnostic criterion A.
32. Dr Westerink diagnosed PTSD, generalised anxiety disorder and dissociative disorder. His diagnosis appears not to recognise that DSM-IV suggests that PTSD and generalised anxiety disorder are mutually exclusive. According to that work, the diagnostic criteria for generalised anxiety disorder would not be present where “ … the anxiety and worry occur exclusively during Posttraumatic Stress Disorder” (at p 436). Dr Dinnen followed this approach and thus found PTSD to be the overarching condition. Accordingly, we place less reliance on Dr Westerink’s opinion. Dr Shmidtmann’s opinion that the applicant has PTSD, expressed in her letter of 4 March 2003 to a departmental doctor (exhibit A2), lacks analytical detail concerning the crucial issue of diagnosis. It adds little to the resolution of this issue, which Mr Sherlock acknowledged.
33. Dr Haik believes that Mr Davison has not been disabled socially, occupationally or in other important areas of functioning, as referred to in diagnostic criterion F above. When asked for his comment, Dr Dinnen agreed that PTSD is not a trivial condition. But in amplification he stated that there are varying degrees of PTSD and one need not be totally incapacitated by the condition for it to be diagnosed. Nevertheless he accepted that there was no evidence of occupational problems or difficulty in other areas of functioning referred to in diagnostic criterion F. Dr Dinnen said all he could fall back on was the psychiatric device of saying that perhaps these factors were acting subconsciously and, but for them, Mr Davison would perhaps have enjoyed greater achievements in his Naval career. Still, he agreed that the applicant enjoyed an exemplary career in the Navy. It is also of note that, after deciding to leave the Navy for family reasons and because he was entitled to a pension for 20 years service, Mr Davison has held jobs for lengthy periods of time. Consequently, we are reasonably satisfied on the material before us that neither the ladder incident nor the collision caused the clinically significant distress or impairment referred to in criterion F.
34. Moving on to consider other diagnostic criteria of PTSD, we note that Dr Dinnen allowed that Mr Davison’s symptoms did not strongly demonstrate diagnostic criterion B, persistently re-experiencing the ladder incident. He contrasted that with the Mr Davison’s symptoms of the diagnostic criteria in par C, persistently avoiding stimuli associated with the ladder incident. We disagree with Dr Dinnen’s conclusion. While the evidence is that Mr Davison dislikes crowds and tends to associate more or less exclusively with his family and ex-servicemen, we do not accept that he satisfies par C to the required level. On the contrary, he is a member of various service associations and attends reunions and similar functions. It is not the case that he has cut himself off entirely from others. His current job requires him to interact with many people living at the retirement village, which he enjoys and he said he relates well with the other staff. With his wife, he enjoys an active social life at the clubs. His family life is and has been stable. On balance we prefer Dr Haik’s opinion that Mr Davison does not suffer from PTSD, because Mr Davison’s symptoms do not satisfy the diagnostic criteria in par C to the required level or criterion F.
35. Dr Dinnen expressed the view that, if the tribunal was not reasonably satisfied with a diagnosis of PTSD, Mr Davison could still be regarded as suffering from anxiety disorder with an associated alcohol abuse. The diagnostic criteria for generalised anxiety disorder in DSM-IV include:
E The anxiety, worry, or physical symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. (p 436)
For the reasons given above in respect of PTSD, we are not are reasonably satisfied that Mr Davison’s symptoms of anxiety (and we note that DSM-IV classes PTSD as an anxiety disorder) have caused the clinically significant distress or impairment referred to.
36. In addition to generalised anxiety disorder, the definition of ‘anxiety disorder’ in SoP 1 of 2000 concerning Anxiety Disorder refers to ‘anxiety disorder due to a general medical condition’ and ‘anxiety disorder not otherwise specified’.. For two reasons we may discard a diagnosis of anxiety disorder due to a general medical condition. First, there is no evidence about a relevant medical condition. Secondly, for the reasons given earlier, we are not satisfied of the existence of symptoms that meet the following diagnostic criterion in DSM-IV for this condition, “E. The disturbance causes clinically significant distress or impairment to social, occupational or other important areas of functioning”. (p 439)
37. There remains ‘anxiety disorder not otherwise specified’ which we note has not been diagnosed by any of the specialists. The SoP contains the following definition which is based on the DSM-IV definition set out at p 444:
‘anxiety disorder not otherwise specified’ means a psychiatric disorder 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;
The anxiety or phobic avoidance needs to be “prominent”.. Symptoms of anxiety were not particularly noticeable during his service years, either in his medical records or by his superiors. If it had have been otherwise, we would not expect him to have been promoted so highly. Therefore we are not reasonably satisfied with a diagnosis of anxiety disorder not otherwise specified. But even if Mr Davison’s symptoms could be so diagnosed, the issue would remain whether the condition is connected with his operational service. A reasonable hypothesis connecting the condition with the circumstances of Mr Davison’s service has to fit or be consistent with the SoP. That is, “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 ... ” (Repatriation Commission v Deledio (1998) 49 ALD 193, at 206). Factor 5(a)(ii) in SoP 1 of 2000 states:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
…
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or…
38. The following approach to determining clinical onset of a condition is found in Re Robertson and Repatriation Commission (1998) 50 ALD 668 and was approved by Branson J in Repatriation Commission v Cornelius [2002] FCA 750 at par 26
… there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present … .
39. What is the evidence regarding Mr Davison’s symptoms following the ladder incident during the period up to July 1970, being approximately two years after his relevant periods of operational service? He told Dr Dinnen that he had experienced “symptoms of anxiety” since the 1970s. But Dr Dinnen accepted in cross-examination that being anxious was not of itself indicative of a psychiatric disorder. There is also the note in the applicant’s service medical records from October 1975 referred to previously (exhibit R1). It stated that there was an 18 month old child at home but “situation otherwise unchanged for several years. Work – no distressing incidents, appetite good, sleep OK. No emotional lability – libido OK”. We are mindful, however, of Mr Davison’s evidence that this was not the only time during his service that he felt anxiety. He said that his anxiety was triggered by events and would come and go and he did not always report it. He said that there was no pattern to his anxiety. But he could not say when it started. On balance this material would not permit us to conclude that the condition had its clinical onset by mid 1970.
40. Dr Dinnen alone diagnosed alcohol abuse. The relevant SoP is 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse. It defines alcohol abuse as “ the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.” The SoP goes on to say that the diagnostic criteria are from DSM-IV. The following diagnostic criteria from DSM-IV for substance abuse, altered below by replacing ‘substance’ with ‘alcohol’, it being a specific form of substance abuse (at pp182-3 and 196), 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 (eg repeated absences or poor work performance related to alcohol abuse; alcohol-related absences, suspension, or expulsions from school; neglect of children or household)
(2) recurrent alcohol use in situations in which it is physically hazardous (eg driving an automobile or operating a machine when impaired by alcohol use)
(3) recurrent alcohol -related legal problems (eg arrests for alcohol-related disorderly conduct)
(4) continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol (eg arguments with spouse about consequences of intoxication, physical fights)
B. The symptoms have never met the criteria for alcohol dependence.
41. In cross-examination Dr Dinnen agreed that any effect of alcohol on Mr Davison’s cognition had not been tested. Further he agreed there was no evidence of any significant cognitive impairment. Although Dr Dinnen conceded that the symptoms did not indicate that criterion A(1) was met, he maintained that Mr Davison’s episode of alcohol poisoning and history of gout demonstrated recurrent use of alcohol that had been physically hazardous. In Dr Dinnen’s opinion, the arrangement whereby the applicant’s wife drives him home after week-end drinking at the club suggested Mr Davison’s use of alcohol causes a recurrent social problem.
42. We do not accept Dr Dinnen’s diagnosis. To prevent gout, Mr Davison no longer drinks wine. There is no evidence of his continued use of alcohol, exclusively beer, creating physically hazardous situations. The arrangement where Mrs Davison does the driving following a night at the club is socially responsible and avoids potential physical or legal problems. There is no evidence of arguments at home over his drinking. We prefer the view proffered by Dr Haik that consumption of alcohol per se does not satisfy the diagnostic criteria. There has to be some form of damage, whether physical, social, legal or inter-personal, that is brought about by the consumption for it to be a maladaptive pattern of use. Mr Davison’s evidence was that he tries to keep his consumption under control. Recognising his work responsibilities and family commitments, he tries not to drink during the week but if he does, he does not drink to the extent he would on an outing or holiday. He noted in his alcohol questionnaire, that early on in his marriage he reduced his drinking when his domestic obligations were great. This ability to appreciate the need to moderate consumption and, more importantly, to succeed with those endeavours suggests to us that the applicant’s consumption is not ‘maladaptive’ within that term’s ordinary meaning: “not providing adequate or appropriate adjustment to the environment or situation” (Concise Oxford Dictionary, 10th edition).
43. Dr Westerink made a diagnosis of dissociative disorder, but without a full explanation. His report merely noted gaps in the applicant’s memory, citing the Melbourne-Evans collision.
44. The Board turned to The Merck Manual of Medical Information – Home Edition 1997 for information about dissociative disorders. The Board quoted from that manual (T12-51):
Dissociation is a psychological defence mechanism in which one’s identity, memories, ideas, feelings, or perceptions are separated from conscious awareness and can’t be recalled or experienced voluntarily. …
Dissociative amnesia appears to be caused by stress – traumatic experiences endured or witnessed, major life stresses, or tremendous internal conflicts. …
45. In Dr Dinnen’s opinion the applicant’s dissociative symptoms are part of the PTSD that he diagnosed, and they do not require a separate diagnosis. Dr Haik did not make the diagnosis because there was nothing in the history he received that suggested the existence of the condition. We accept Dr Haik’s reasoning which is as follows (exhibit R7):
To be completely amnestic, for emotional reasons, would appear extreme and most unusual – particularly as his doctor has written that there were ‘gaps’ in his memory and therefore not a complete void. It might be plausible that Mr Davison has a degree of Dissociative Disorder regarding this matter but it is an uncertain issue at this point. However, it is unlikely that he has ‘forgotten’ (or dissociated) any other stressful navy experience, particularly after 5 weeks in a PTSD course in June 2001 and the alleged intense investigation pursued by his counsellor.
On balance we are not satisfied that the applicant’s symptomatology may be diagnosed as dissociative disorder. Moreover, any such condition would not be related to eligible service as the Melbourne-Evans collision occurred outside the periods of Mr Davison’s operational service and defence service.
46. For the reasons above we conclude that Commission’s decision under review should be affirmed.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of P.J.Lindsay, Senior Member and Dr M E C Thorpe, Member:
Signed: .......................................................................................
AssociateDate of Hearing 11 March and 19 June 2003
Date of Decision 5 February 2004
Applicant’s Representative Mr R Sherlock, Legal Aid CommissionRespondent’s Representative Mr J. Marsh, Dep’t of Veterans’ Affairs
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