DENNIS LEE and REPATRIATION COMMISSION
[2009] AATA 991
•24 December 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 991
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1671
VETERANS APPEALS DIVISION ) Re DENNIS LEE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date24 December 2009
PlaceSydney
Decision The decision under review is affirmed. .................[sgd]...........................
Dr J D Campbell
Member
CATCHWORDS
VETERANS’ AFFAIRS – entitlement claim – diagnosis of psychiatric condition – clinical onset – relationship to service – decision under review is affirmed
Veterans’ Entitlements Act 1986 – s 120, 120A
Benjamin v Repatriation Commission (2001) 64 ALD 411
East v Repatriation Commission (1987) 16 FCR 517
Lees v Repatriation Commission (2002) 125 FCR 331
Meehan v Repatriation Commission (2002) 35 AAR 353
Re Hardman and Repatriation Commission (2004) 82 ALD 381
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Hill (2002) 69 ALD 581
REASONS FOR DECISION
24 December 2009 Dr J D Campbell, Member 1. Mr Dennis Lee lodged an application with the Repatriation Commission on 12 June 2002. Mr Lee claimed the following new disabilities as being war or defence caused:
·Emotional disorder – “I have never felt right since my operational service. People tell me I have emotional problems.”
·Bronchitis – “Constant breathing problems and chest infections. I have used puffers and now developing a wheeze.”
·Impotence – “I have had this problem for the last 5 years.”
2. On 5 May 2003 the Repatriation Commission determined that:
·The claim for chronic airways limitation was accepted.
·The appropriate medical diagnosis for the claimed emotional disorder condition was dysthymic disorder, and adjustment disorder with mixed anxiety and depressed mood.
·The adjustment disorder with mixed anxiety and depressed mood, dysthymic disorder and impotence were not related to service.
·Disability pension was increased to 70 per cent of the General Rate with effect from 12 March 2002.
3. Mr Lee served in the Navy from 26 August 1957 until his free discharge dated 1 October 1977. Mr Lee had the following periods of service which are periods of operational service and eligible service pursuant to the Veterans’ Entitlements Act 1986:
·Operational service with the Far East Strategic Reserve
25 March 1959 to 28 April 1959
12 May 1959 to 9 June 1959
18 June 1959 to 30 July 1959
31 August 1959 to 9 September 1959
18 September 1959 to 10 October 1959
16 November 1959 to 5 December 1959
·Defence service (eligible service)
7 December 1972 to 1 October 1977
4. Mr Lee has the following conditions accepted as service related:
·Recurrent low back strain
·Lumbar spondylosis
·Chronic airways limitation
5. On 16 August 2006 the Veterans’ Review Board affirmed the earlier decision dated 5 May 2003 of the Repatriation Commission that Mr Lee’s adjustment disorder with mixed anxiety and depressed mood, dysthymic disorder and impotence was not related to his service.
ISSUES
6. The relevant issues in this matter are:
(a)Does Mr Lee suffer from a psychiatric condition, and if so what is the diagnosis of that condition?
(b)Is Mr Lee’s psychiatric condition related to his service?
(c)Does Mr Lee suffer from impotence and is this condition related to his service?
CONSIDERATION AND FINDINGS
7. I am mindful that this matter has been the subject of much deliberation, with further material and expert opinion gathered over a protracted time frame commencing with claim lodgement in June 2002. Despite this, the basic issues remain unchanged, namely, what is the diagnosis, if any, of Mr Lee’s psychiatric condition and is such a condition related to either his operational and/or eligible periods of service. I note that in relation to the diagnosis, the standard of proof is one of reasonable satisfaction (balance of probabilities) (Benjamin v Repatriation Commission (2001) 64 ALD 411 (considered and applied)).
Diagnosis of the kind of disease
8. In a report dated 24 September 1997 (exhibit R6, p.147) Mr Wenzel, a clinical psychologist, noted that Mr Lee, after leaving the Navy in 1977 worked for BHP Collieries for eight years as manager of training and development and had been currently employed at that time for 10 years with the Department of Education and Training, as an industry training adviser. During this period Mr Wenzel records Mr Lee as being exposed to considerable turmoil arising from ongoing organisational change leading to Mr Lee having increasing difficulty in coping with his work, as evidenced by an increasing amount of sick leave because of the following symptomatology:
·Anticipatory anxiety as the training system is due to change again;
·Panic attacks when confronted with situations he was unable to resolve;
·Chronically tired and exhausted, with recurring headaches as well as migraines;
·Suffers from reflux and indigestion on a regular basis;
·Complains of memory impairment, problems with concentration and is easily distracted;
·Remains anxious and prone to panic attacks, a lack of libido and at that time was impotent;
·Troubled with high blood pressure and frequently experiencing surges of anger and depression.
9. Mr Wenzel considered that Mr Lee’s symptoms are indicative of an agitated depression, and that the “current occupational stresses may in fact have aggravated an underlying preexisting tendency to depression and anxiety given the fact that Mr Lee had experienced a range of severe psychosocial stresses” during his service over many years with the Navy. In further reports dated 14 January 1998 (exhibit R6, p.149) and 22 September 1999 (exhibit R6, p.152) Mr Wenzel traces Mr Lee’s ability to return to work and discharge a full range of duties, with the rehabilitation program monitored and reported upon by Dr Davidson, a specialist in rehabilitation medicine, in reports dated 16 December 1998 (exhibit R6, p.150) and 9 February 1999 (exhibit R6, p. 151).
10. In 2002 Mr Lee was again referred to Mr Wenzel by Dr Drastik (Mr Lee’s general practitioner) because of a significant deterioration in his mood state manifested in depression and anxiety symptoms. In his report dated 23 July 2002 (exhibit R6, p.165), Mr Wenzel reported that Mr Lee’s presentation mirrored that of his initial assessment in 1997. Mr Wenzel again commented that “Mr Lee appeared to have been a chronically compensating person due to his exposure to severe psychosocial stresses during his service with the Australian navy where he was employed as a sub-mariner.” In a further report dated 6 March 2003 (exhibit R6, p.168) Mr Wenzel observes Mr Lee’s primary problem to be an entrenched severe depression and that “it seems unlikely that Mr Lee will be able to return to work in his capacity as Industry Training Adviser.”
11. I note that Mr Lee commenced duty with the Department of Industrial Relations and Employment (later Department of Education and Training) on 4 January 1988. I further note that on 18 March 1998 (T14, p.89), Dr Gapper, a NSW Government Medical Officer, records that Mr Lee had been referred for assessment by a consultant psychiatrist as he was suffering from an anxiety and depressive disorder, which was rendering him temporarily unfit for work. I note that Mr Lee received workers compensation payments leading up to his medical retirement from employment on 6 July 2003 (exhibit R9).
12. I observe that in a report dated 19 September 2002 (T5), Dr Morris, a consultant psychiatrist, detailed the following:
·Mr Lee’s history of experiencing difficulties in his current workplace and his complaints of anxiety, panic attacks, depression, muscle pain and tearfulness over periods of this employment.
·Mr Lee’s exposure during Navy service to being assaulted by three men in Singapore, whilst on leave in which he suffered a fractured nose, fractured teeth and cuts to his head – such injuries not being reported to the Navy.
·Being assaulted on another occasion in Singapore and mugged twice in Indonesia in the same year.
·In 1959, he and some other sailors carried the body of a local chandler, who had been beaten to death by a mob of people, back to his ship, which was berthed in the Naval base in Singapore.
·That since being in Singapore in 1959, Mr Lee had a recurring dream of being chased by people whilst being in the Navy.
·That for the last 12 years Mr Lee “has had another recurring dream of being in water with other naked men and people on shore not helping him and the other men get out of the water.”
·That Mrs Lee reported that Mr Lee had been depressed for a long time, namely since the mid-1970s. Since that time Mrs Lee reported that he had been depressed and quiet for periods, that he was a poor sleeper and his mood varied a lot. She noted that Mr Lee over the last five years talked a lot about “bad incidents” that occurred in the Navy, including the death of the ship’s chandler. Further she noted that he had lost interest in sports and avoided socialising in the past 20 years or so and going to the shops over the last ten years, as well as having a problem with impotence over a long period.
13. Dr Morris considered that Mr Lee suffered from:
·A dysthymic disorder as he had a “depressed mood for most of the days for more days than not” as observed by himself and his wife for more than two years, together with symptoms of insomnia, low energy and fatigue, low self-esteem and poor concentration.
·Since June 2002, an adjustment disorder with mixed anxiety and depressed mood, which developed in response to work stresses including structural changes in the Department of Education and Training. Such a disorder is evidenced by depressed mood and symptoms of nervousness, worry and jitteriness.
14. Dr Morris considered that Mr Lee’s war service was a contributing factor to his condition of dysthymic disorder, namely the significant distress experienced by Mr Lee as a result of incidents experienced in 1959 in Singapore (ship’s chandler’s death, serious assault while on leave). Mr Morris also relied upon reports from both Mr Lee and his wife that he had had recurrent episodes of depression since these incidents.
15. In a report dated 14 March 2003 (T19, p.227), Mr Stambouliah, a consultant psychologist, confirmed that Mr Lee presented with significant chronic adjustment disorder with depression and anxiety symptoms and that he was not psychologically fit to resume his substantive duties.
16. In a further report dated 1 July 2003 (T14, p.93) Mr Wenzel made the following observations:
·“At this point in time Mr Lee has been away from his employment for over twelve months which would indicate that the diagnosis of chronic adjustment disorder would at this point no longer be valid … as the stressor [namely the workplace] that caused it … was terminated some twelve months ago.”
·That Mr Lee “is now essentially trying to deal with his earlier entrenched psychological difficulties.”
·“It appears that Mr Lee has been presenting with a host of physical symptoms reflecting his underlying nervous disorders” over many years (hypertension, migraine).
17. In a report dated 18 August 2003 (T14, p.95), Dr Koller, a consultant psychiatrist, notes Mr Lee as complaining of the following symptoms:
·Restless sleeper – “wakes up and cannot return to sleep.”
·Recurrent dreams – “wandering around a naval base and being chased I see locker rooms if I can change I will be alright.”
·Ruminations
·Readily distressed by cues and symbols of submarines
·Irritability, angry outbursts
·Mood swings
·Poor concentration
·Social isolate, prefers own company
·Impotence since 1975
18. Dr Koller also reports Mr Lee as being involved in the following incidents during his Naval service:
·On his first voyage to Singapore (1959) he was attacked by some men on his way to the gymnasium – “he was hit by sticks and bruised over body, his nose was broken and he lost a front tooth.”
·“Some months later at a Fun Park in Singapore, he and some mates were attacked by a large group. He lay on the ground and was trampled over. After this he noticed he was anxious and sleep was difficult. ‘I was having nightmares.’”
·“At the time of the Singapore elections the ship was actively guarded and even live ammunition was issued. The ship’s chandler was killed by the mob surrounding the ship.”
·Several minor incidents in Sri Lanka, Solomon Islands and Port Moresby – after this “I noticed I was getting depressed and I threw myself into sports, [and] when I returned to Australia my wife to be said I had changed”.
·As a Senior Able Seaman on the ship he was charged with sleeping on duty.
·In 1965 he joined the submarines and went to UK for training. There were some incidents where Russian ships dropped depth charges and off Ireland the submarine hit the bottom when there was a miscalculation of water depth.
·In 1977 he left the Navy, his health had deteriorated, he was anxiously depressed and he had been demoted.
19. In summary opinion Dr Koller considered Mr Lee to be suffering from chronic post traumatic stress disorder (PTSD) arising from exposure to an extensive history of life threatening events during his Navy service. Dr Koller considered Mr Lee’s PTSD to be characterised by ruminations, thought disorders, flashbacks (suspected), sleep disorders, nightmares, distressed by cues and symbols of Navy service, angry irritability, poor concentration, social avoidance and suffers from psychogenic impotence.
20. In a statutory declaration dated 30 July 2004 (T14, p.100) Mr Lee detailed the three incidents which occurred in Singapore during his service with HMAS ANZAC in 1959:
·Incident one – Saturday in May – in much detail the events relating to the death of the ship’s chandler, Mr Ho, including his response to the incident and his experience of flashbacks to the event.
·Incident two – the fun park incident, where he was beaten, went to Raffles Hotel and was given first aid, prior to returning onboard and reporting to the Divisional Petty Officer who told the Coxswain.
·Incident three – when running to HMS Terror for training in the gymnasium, he was attacked and assaulted by men jumping from a car, he reported such to the redcaps at HMS Terror. Mr Lee stated that he continued to experience flashbacks over this event.
Further Mr Lee attested that since that time he has suffered and continues to suffer from flashbacks, nightmares, sleeplessness, anxiety and periodic lapses into deep depression and apathy, the latter occurring on six occasions, namely 1960, 1967, 1977, 1982, 1998 and 2001.
21. In a further statutory declaration dated 30 July 2004 (T14, p.103) Mr Lee described the following life events after he left the Navy:
·From 1977 he worked as a Training and Development Officer with BHP Collieries in Wollongong. In mid 1984 he slid into depression and struggled for nine months, prior to leaving the employment.
·In August/September 1985 he became self employed, working on a contractual basis.
·In 1988 he commenced working with the NSW Department of Education and Training. Episodes of depression/fatigue/ headaches occurred in 1995 (seven weeks paid leave and a further three months unpaid leave), in 1997 (12 months off work – compensable) and in June 2002 (compensation, medical retirement – 7 July 2003).
22. In a report written by Captain Josephs AM Rtd for Writeway Research Service Pty Ltd dated 16 October 2004 (T14, p.121), Captain Josephs, after acknowledging his presence in the area in 1959, concluded that after examining all relevant records of proceedings, he was unable to find any reference to such an incident as the death of a ship’s chandler in May 1959 or of a possibly similar incident having taken place during visits to other ports. Captain Josephs also detailed his personal association with Mr “Charlie” Hoo (whom he identified as the alleged victim, Mr Ho) both before and long after the alleged death of Mr Ho and that when he returned to Australia in 1980 Mr Ho was alive and well.
23. In a report dated 23 November 2004 (T15, p.157), Mr Borenstein, a clinical psychologist, noted that Mr Lee had “long standing depressive symptoms as well as anxiety, which dates to his service in submarines.” Mr Borenstein also noted Mr Lee reporting symptoms in relation to a trauma in 1959 in Singapore, where he saw a man beaten to death and that he has been diagnosed as suffering dysthymic disorder.
24. In an unsigned and undated written statement (T16, p.170) prepared as part of his appeal and prior to the Veterans’ Review Board hearing on 25 November 2005, Mr Lee detailed the following:
·Accepted that Mr Ho was alive and well and that the incident did not happen as he had described, although he remained convinced that he “did witness someone (most likely Asian) being beaten to death.”
·That the fun park assault occurred on 11 April 1959, and that he believed, although not absolutely sure, that “Shakey” McGee, “Lofty” Lawler and Len Matthews had been with him at the time of the attack.
·That the road assault that occurred when he was running to the gymnasium occurred on a week day between 5 July and 13 July 1959.
25. I note the following reports:
·Dr Koller, dated 26 May 2005 (T16, p.175), in which Dr Koller details a mechanism to explain Mr Lee’s mistaken belief that the death of Mr Ho had actually occurred.
·Mr Len Matthews in a letter dated 15 July 2005 (T16, p.162) in which he confirmed his presence when on leave with Mr Lee when confronted by a large number of locals, and that they suffered injuries in the following melee.
·Mr Ian Bentley in his statutory declaration dated 12 December 2004 (T16, p.176) stated that he was able to recall both the amusement park incident and the jogging incidents and the facial injuries sustained by Mr Lee in the second incident. Mr Bentley stated that he was not present at either incident.
·Mr Joseph Charlton in a statement dated 26 June 2005 (T16, p.177) details helping Mr Lawler and Mr Lee and one more to get onboard HMAS ANZAC at 0030 hours one morning early in the ship’s trip to the Far East in 1959, as they were badly hurt. Mr Charlton recalls an account being given of them being molested and bashed at a fun park.
·Mr B Lawler in an undated letter (T16, p.178) confirmed the occurrence of both incidents.
·Mr R Lewis in an undated statutory declaration (T16, p.182) confirmed that he saw Mr Lee after he had been treated at HMS Terror, but was not a witness to the attack. Mr Lewis, in noting that he was a member of the boxing team, who used the gymnasium at HMS Terror to train, thought the incident occurred prior to the election.
26. In a report dated 27 February 2006 (T19, p.231), Dr Smith, a consultant psychiatrist, detailed that Mr Lee reported that in 1988 (should read 1997) that he experienced a major depressive episode and after a period of 12 months on workers compensation benefits he returned to work, only to have a recurrence in June 2002, which led to his retirement in 2002 (should read 2003). Dr Smith also detailed the three incidents occurring during Naval service and upon which Mr Lee had originally relied and noted the following:
·In relation to the incident of the death of Mr Ho, Mr Lee now accepts that this incident was a figment of his imagination, but also states that he “was not distorting events in a conscious way”, as Dr Koller had advised him that such had occurred because of his emotional state.
·The incident at the fun park, which at that time Mr Lee thought he would die.
·The jogging incident, with his injuries not being recorded because of a lack of medical personnel on the ship.
27. Dr Smith recorded Mr Lee as detailing the following symptoms:
·Persistent depressive episodes associated with heightened levels of anxiety and panic attacks.
·That he was experiencing a panic attack when he was accused of falling asleep on board his ship, in that he was not asleep but unable to sleep because of a heightened level of anxiety.
28. In his report summary Dr Smith detailed that “there are a number of significant issues that cause concern pertaining to the veracity of the account provided by Mr Lee in regard to the underpinnings of his psychiatric disorders”, namely:
·The events surrounding the purported death of Mr Ho,
·Difficulty in accepting the explanation provided by Dr Koller,
·The issue of retrospective falsification is often associated in individuals with personality disorders, but may also occur in individuals suffering mood disorders,
·The variations in the accounts given by Mr Lee in regard to the assault incidents experienced,
·That the asleep on duty incident was, in his opinion, not consistent with a panic attack,
·That he has not developed diagnostic criteria for a chronic post traumatic stress disorder,
·His opinion as to diagnosis more closely accords with that of Dr Morris – namely dysthymic disorder and an adjustment disorder with depressed and anxious mood.
29. In the event that it is deemed true that the assault incidents as described in Singapore did occur, Dr Smith considers that “on the balance of probability those events were distressing and in all probability did result in either an Acute Stress Disorder or an Adjustment Disorder with Depressed and Anxious Mood.” Dr Smith also considered that if the events as described did occur, they “were significant stressors and may well have gone onto the development of [PTSD].” Dr Smith also considered that “because of retrospective falsification that [had] arisen in the incident of Mr Ho and in the absence of verifiable medical documentation”, it is possible that the events did not occur and “the likelihood of any psychiatric sequelae as a result of such incidents is low.”
30. In a report dated 23 April 2007 (exhibit A4) Dr Dinnen, a consultant psychiatrist, detailed Mr Lee’s presenting symptoms as:
·“depressed … feels sad all the time … angry … can’t sleep”
·“muscle pain”
·“constantly disturbing dreams”
·“thinks about the attack constantly”
·“panic attacks”
·“Reminders of service … have dredged up feelings of hopelessness and frustration, like those he felt in 1959 when it happened”
·“suffers from stomach acid … headaches”
·Does not go out of the house often (panic attack experienced as he left his house to attend the appointment)
·“impotent and has no libido”
·“drinking gives [rise to] flashbacks”
·“bottomed out on eight occasions since 1959.” Four in the Navy – got into trouble and was demoted after a court martial.
31. Dr Dinnen detailed Mr Lee’s recital of his Navy service, which included:
·Details of the fun park incident in April 1959, in which Mr Lee suffered cuts and bruises, and a bleeding nose.
·Details of the jogging assault in June/July 1959 in which he suffered a broken tooth and his nose may have been broken.
·That after the jogging assault, he was unable to sleep, he got headaches, he started to have nightmares and “hit the booze”. He started to go ashore looking for fights, he was antisocial and did not mix. He also began to have morbid thoughts about beating up his assailants and rolling off the deck.
·That in December 1959 when the ship returned to Australia his mother said “you’re an angry bastard”. He stayed in bed at home for six weeks, stopped drinking and had dreams, thought about being beaten.
·That in 1961 he was charged with sleeping on duty when as helmsman on HMAS ANZAC and was sentenced to 14 days in the cells, where he was pleased to be, as he could just lie there.
·In 1964, while on HMAS Moresby, he was seen by doctors because he couldn’t get out of bed. He changed his posting and was appointed to submarines.
·In 1968 while serving on HMS Onyx, and having spent six weeks at sea, when departing on leave he was chipped over his dress and responded physically resulting in a loss of leave and three good conduct badges.
·In 1976 he had “gone walkabout” and was AWOL. He elected a court martial, which resulted in his demotion to Petty Officer and removal from the submarine service.
·In 1982, a depressive episode when working for BHP.
·In 1987, a further episode in which he spent a year in bed.
·In 1996, a further episode that led to him receiving medical attention for his condition for the first time and workers compensation.
·In 2002, a further episode that led to his retirement.
32. Dr Dinnen recorded the following relevant details in his interview with Mr Lee’s wife:
·That since he came back from “up top” (Far East) there had been good weeks and bad weeks with more bad than good.
·That after they were married and settled in she realised that he was suffering from “the doldrums”.
·That Mr Lee was very bad for a year when working for BHP. He would sit all day on the verandah with a book and was unable to remember anything.
·That he never communicated well with anyone, and it was she, who having talked to Dr Drastik in 1996 was instrumental in Mr Lee being treated.
·That she had asked him through the years if he wanted to hurt himself to which he would reply that “I’m fine”.
33. In summary opinion Dr Dinnen concluded that:
·“The clinical findings together with the documentation indicate [that Mr Lee] has suffered from recurrent episodes of depressive illness for many years” which date back to 1961, when placed in the cells for falling asleep while undertaking the duty of helmsman on HMAS ANZAC.
·“The recurrent pattern of illness is more in keeping with that of recurrent major depression”.
·That there is well documented evidence of the physical assaults and that he agrees “with Dr Koller that the story about Mr Ho is a feature of his illness and is not deliberately simulated.”
34. In a further report dated 8 June 2007 (exhibit R4), Dr Smith having further interviewed Mr Lee, considered that the further information does not substantially modify his earlier opinion. Dr Smith did not believe that Mr Lee satisfied the diagnostic criteria for recurrent major depression, and his symptoms do not accord with a major depressive episode.
35. In a further report from Dr Dinnen dated 12 September 2007 (exhibit A5) Dr Dinnen concluded that he did not believe that Mr Lee’s depressive disorder may be the consequence of chronic pain, as “the history of episodes of depression occurring over almost fifty years is not in keeping with the chronic depressive illness that one associates with chronic pain disorder.”
36. In an undated report (exhibit A11) Dr Drastik states that she has been Mr Lee’s general practitioner from 14 May 1987 and for the last 22 years. Mr Lee “has presented as a distressed man, who proves difficult to help.” Dr Drastik notes that “he is circumlocutive, discursive, tense, anxious and irritable.” Dr Drastik records Mr Lee’s symptoms as ruminating over problems, complaints of impotence since 1993, difficulties with sleeping, frequent nightmares, avoids social interactions, increasing agitation. Dr Drastik considered that “Mr Lee suffers from constant dysthymia, mixed anxiety, depression and impotence.”
37. In a report dated 4 August 2009 (exhibit A12), Mr Borenstein noted that he had been treating Mr Lee over a five year period with his symptoms being of “chronic dimensions”. Mr Borenstein considers Mr Lee to be suffering from “a recurring, severe psychiatric illness typified by both depression and … chronic dysthymia.” Mr Borenstein also considers that Mr Lee suffers from chronic adjustment disorder with mixed anxiety and depressed mood. Mr Borenstein considers that Mr Lee’s psychiatric condition had its origins in his Naval service and was reactivated in his later work context. Mr Borenstein, having reviewed the court martial documentation and after speaking with Mr Lee, prepared a supplementary report dated 3 October 2009 (exhibit A13) in which he noted that Mr Lee referred to the court martial as “the final indignation”.
38. In oral evidence Mr Lee detailed the following:
·Acknowledged that he had established more accurate dates for the two assault incidents by reference to the material that had been amassed since he lodged his claim in 2002.
·Acknowledged that he had sought information from former shipmates by advertising in the Vetaffairs newsletter dated June 2005 and the HMAS ANZAC/Tobruk Association Inc newsletter of August 2005, as well as speaking with those that responded.
·Confirmed the details surrounding the sleeping on duty incident when helmsman on HMAS ANZAC in 1960/61, the punching incident and subsequent disciplinary action when attached to the Royal Navy.
·Outlined the events surrounding his hospitalisation in Tripler Hospital, Hawaii in 1975 and the events surrounding his court martial in 1975, both associated with much stress.
·Described the mechanism whereby “the fog” would come back as starting with aches and muscle pains and headaches, then numb to emotions and feelings and always feeling so sad and tired.
·Spoken about how job changes were good for him as “learning new stuff … was fantastic”.
·Believed his dental plate was broken in the jogging incident (July 1959) despite records indicating the plate was repaired in May 1959.
·That he first felt back pain in 1961 and he overcame the symptoms by playing sport, with the back pain remaining an inconvenience. The back pain became more severe around 1999, when he had to give away water skiing.
39. In oral evidence Mrs Lee described Mr Lee being introverted and quiet, when he returned from the Far East in 1959. When they were married Mrs Lee observed that he was a bit sullen and did not sleep well and that he got “down in the dumps” after the birth of the first child, towards the end of 1962.
40. In addressing the issues of diagnoses in this matter, I observe that Dr Smith in his examination of 27 February 2006 did not refer to any difficulties in obtaining a clinical history from Mr Lee. Indeed he found Mr Lee to be cooperative, interested and attentive, with his speech being spontaneous and productive. Dr Dinnen in his report of 23 April 2007 found Mr Lee to be a discursive and rambling historian, whose account was over inclusive, but logical and coherent. Over the first two days of hearing I came to a similar opinion as that nominated by Dr Dinnen. I draw no inference from such a presentation, as indeed it may be reflective of Mr Lee’s personality or mood at the time or both, an assessment made more pertinent by the comments of Dr Morris and Dr Drastik in their respective reports.
41. Clearly, on the material before me there is an issue as to the reliability of Mr Lee’s account of his Naval service and particularly the accounts of incidents said to have occurred in Singapore in 1959. Apart from the consultation with Dr Morris, all remaining clinicians who have made reports in this matter which have involved consideration of aspects of Mr Lee’s Naval career, have made such reports with the knowledge that Mr Lee’s description of the incident involving the death of Mr Ho, a ship’s chandler in May 1959 was at odds with the factual situation that Mr Ho was known to be alive and well in 1980. Further, both Drs Smith and Dinnen, being the last two psychiatrists to report have had the opportunity to read earlier material, which, when considered with current accounts of both the fun park incident and the jogging incident does point to certain inconsistencies between earlier and current accounts of these two incidents. Such apparent inconsistencies relate to timing of the event and the nature and consequences of the incidents.
42. Further, I do observe that there is much evidence to suggest a degree of impulsivity in Mr Lee’s behaviour, particularly during his period of Navy service. Such evidence can be found in his desire (it would seem) to be involved in fights in the early years of Naval service, issues surrounding the helmsman incident in 1960/61, the decision to become a submariner, his response to being chipped in England, his failure to attend a parade ceremony in his honour in 1975 and his decision to elect to have his charges dealt with in 1975 by way of a court martial.
43. Nevertheless, the clinical history of Mr Lee as I have outlined earlier in this decision, and with the caveat there outlined in relation to the opinion of Dr Morris, all psychiatric and psychological opinions, with perhaps the exception of Mr Wenzel, have dealt with Mr Lee’s clinical history with the knowledge of the variabilities that I have earlier outlined. While Dr Smith has expressed a somewhat different opinion about the relationship of Mr Lee’s current psychiatric condition to his Naval service, all psychiatric and psychological opinion detail that Mr Lee is currently suffering from a psychiatric condition. All opinions rendered in this matter, bar that of Dr Koller, nominate that Mr Lee is suffering from some form of depressive disorder. While I observe that Dr Koller considers that Mr Lee is suffering from chronic PTSD, a diagnosis receiving limited recognition in defined circumstances by Dr Smith, the remaining opinions nominate dysthymic disorder as the preferred diagnosis (Dr Morris, Mr Borenstein, Dr Smith), depressive disorder – recurrent major depressive illness (Transcript, p.172), recurrent depressive disorder (Transcript, p.190) (Dr Dinnen), agitated depression (Mr Wenzel) together with a secondary diagnosis of chronic adjustment disorder with anxious and depressed mood (Dr Morris, Dr Smith). (In regard to the secondary diagnosis in Dr Smith’s opinion if service events occurred as alleged they may have been the stressors, while Dr Morris also acknowledges the stressors as arising in Mr Lee’s place of employment leading to his retirement in 2003.)
44. Having considered all the material I am satisfied on the balance of probabilities that the diagnosis of Mr Lee’s psychiatric condition is depressive disorder, which encompasses both dysthymic disorder and recurrent major depressive disorder. I note that Mr Lee has described six episodes of being in a “fog”, with the first episode being 1961, and that his wife’s evidence as assessed by Dr Dinnen more indicative of Mr Lee suffering from an ongoing depressive illness, with ups and downs, with exacerbations and remissions (Transcript, p.172). I note the latter opinion to be consistent with those of Drs Morris and Smith. It would appear that such an analysis is indicative of Mr Lee suffering a long term and ongoing depressive disorder with the most probable diagnosis being dysthymic disorder, this being the opinion of Drs Morris and Smith and, in part, the opinion of Dr Dinnen. For these reasons I so find.
45. There is also the issue of the secondary diagnosis of adjustment disorder with anxious and depressed mood, a diagnosis made by Drs Morris and Smith and Mr Borenstein, while Mr Wenzel considered Mr Lee’s presentation in 1997 and again in 2002 to be agitated depression (later nominated as entrenched severe depression) arising as a response to considerable occupational stressors in the workplace, which he believed may have aggravated an underlying pre-existing tendency to depression. In further comment dated 1 July 2003 (exhibit R6, p.187) Mr Wenzel drew attention to the fact that Mr Lee had been absent from work for more than one year and the diagnosis of chronic adjustment disorder would no longer be valid, as the stressor involved, namely the workplace, had been terminated 12 months earlier. I note that Dr Dinnen appeared to prefer a single diagnosis to encompass Mr Lee’s psychiatric condition – a diagnosis referred to earlier in this decision.
46. In noting that the secondary diagnosis of adjustment disorder was not made until after 1997 and that the stressors named related to Mr Lee’s workplace I observe that there exists an issue that the secondary diagnosis can seem to have arisen as a consequence and/or a contribution to an aggravation of a pre-existing depressive disorder, which may or may not have arisen as a consequence of his Naval service. In such circumstances I consider it unnecessary to further define either the diagnosis or causation issues until and after the issue of whether or not Mr Lee’s dysthymic disorder is related to service has been addressed.
47. Further, I would observe and so find that Mr Lee does suffer from impotence. I would observe that there is clear evidence of such complaints by Mr Lee in 1975, and at which time investigation of such was conducted. I am mindful that investigations have been conducted and excluded physical causes of impotence. I note Dr Dinnen’s opinion that Mr Lee’s impotence is of a psychological cause and I so find. In such circumstances acceptance that Mr Lee’s impotence was war-caused will depend on whether or not Mr Lee’s dysthymic disorder is related to service.
RELATIONSHIP TO SERVICE
48. The hypotheses postulated in this matter are:
·Mr Lee suffered two assaults in 1959 while on operational service which either caused and/or contributed to the development of a dysthymic disorder with a clinical onset in 1960/1961.
·Mr Lee has an accepted condition of lumbar spondylosis which has led to the development of a chronic pain syndrome in 1999, which in turn has aggravated an existing depressive disorder.
49. I note that the relevant Statement of Principles (“SoP”) is Instrument No. 27 of 2008 concerning Depressive Disorder. I note that the term “depressive disorder” means:
… a group of psychiatric conditions which are manifested by a dysphoric mood. The mood disturbance is prominent and persistent. This definition is limited to major depressive episode, recurrent major depressive disorder, dysthymic disorder, depressive disorder not otherwise specified …
50. I note the diagnostic criteria listed for dysthymic disorder and on review of all the material, I am satisfied that there is material pointing to such necessary diagnostic criteria. Such material is to be found within the evidence of Mr Lee, his wife, and the various reports of the psychiatrists and psychologists given in this matter.
51. I observe that the factors relied upon in this matter are:
Factor 6(a)(ii) – “experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder”; and
Factor 6(a)(ix) – “having chronic pain of at least three months duration at the time of the clinical onset of depressive disorder”.
52. A category 1A stressor is defined within paragraph 9 of the SoP to mean:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
…
53. In addressing the issue of Mr Lee experiencing a category 1A stressor, and having considered all the material in evidence before me, I note the material of two assault incidents nominated by Mr Lee as occurring in April and July 1959. I further observe the written material provided by various shipmates and the oral evidence of Mr Charlton and Mr Bentley. I further observe that Dr Smith in his opinion commented that if the assault incidents did occur they were of a serious nature, the latter being intrinsic to the opinions of Drs Morris, Koller and Dinnen.
54. While there is an absence of a Naval medical or administrative record of such assault incidents in the material before me, the material does point to Mr Lee being subject to two serious assaults in April 1959 and July 1959 while serving on HMAS ANZAC on operational service.
55. Again having considered all the material in relation to the issue of the clinical onset of depressive disorder, I note the material of Mr Lee, Mrs Lee and reputed comments of Mrs Lee (Mr Lee’s mother) suggesting a change in Mr Lee’s mood in 1960-1962 following his return to Australia. I further observe that Dr Dinnen, having considered such material, together with that relating to the sleeping at the wheel incident in 1961, stated in oral evidence that he believes that the material is suggestive of a mild sort of depressive illness from 1959 onwards, although it did not come to clinical attention until 1996. I note Dr Smith in his oral evidence points to Mr Lee’s depressive disorder becoming manifest in the early eighties when he was employed by BHP, although it is possible a dysthymic disorder could have a clinical onset when Mr Lee was 19 years old. Further Dr Smith points to the earliest evidence of psychiatric illness at the time of his compensation claim when being seen by Mr Wenzel.
56. In summary the material before me points to Mr Lee experiencing a clinical onset of his dysthymic disorder in the period 1959 to 1962.
57. Having considered all the material before me, I observe that there is material pointing to each essential element of factor 6(a)(ii) (Repatriation Commission v Hill (2002) 69 ALD 581 considered and applied).
58. I am mindful that for a hypothesis to be reasonable, even in the circumstances that the SoP factor is met, it must be more than a possibility, consistent with known facts, not fanciful or unreal or too tenuous or remote (East v Repatriation Commission (1987) 16 FCR 517 considered and followed). I also note that it is not my task at this stage to determine the correctness or otherwise of facts raised whether such facts are in favour or contrary to the hypothesis (Re Hardman and Repatriation Commission (2004) 82 ALD 381 considered and followed). In the light of the above I am satisfied that a reasonable hypothesis exists linking Mr Lee’s depressive (dysthymic) disorder with his service as there is material pointing to each essential element of the factor and that the hypothesis is more than a mere possibility and neither too tenuous or remote.
59. In addressing the fourth stage of the Deledio process (Repatriation Commission v Deledio (1998) 49 ALD 193) I must proceed to consider whether I am satisfied beyond reasonable doubt that Mr Lee’s depressive disorder did not arise from a war-caused injury. If I am so satisfied Mr Lee’s claim must fail, if not so satisfied the claim must succeed.
60. There are two factual matters in contention. The first is whether or not Mr Lee was the subject of a serious physical attack during his period of operational service. He says he did, there being two separate incidents in April 1959 and July 1959. Fellow service participants in the April 1959 fun park assault have provided confirmation of the event, while sailors, including a petty officer have detailed written statements and given oral evidence about Mr Lee’s return to the ship after midnight on the day of the incident. Similarly, other sailors have attested to their memory of the jogging incident.
61. The material suggesting that the events did not occur is detailed as follows:
·The retrospective falsification of the death of Mr Ho – an event which did not occur as described by Mr Lee.
·The change in details as to date of occurrence and details of the event as Mr Lee’s claim progressed.
·The absence of any ship report or Navy report of either incident.
·The absence of any Naval medical record detailing any of the injuries nominated as occurring as a result of the incidents, let alone attendance for medical treatment.
·The presence of medical records documenting his attendance for various other minor complaints during the period in question.
·An absence of any Naval record subsequently in which a complaint or mention of the two incidents in question has been caused by Mr Lee.
62. I am also mindful that while Dr Smith considers Mr Lee to be a competent historian, he remains of the opinion that the incident of Mr Ho’s purported death was a retrospective falsification and that in summary opinion he was presenting his history “from the point of view of potential financial gain. That is … displaying symptoms and pathology for which there is really no psychiatric basis.” In this regard Dr Smith considered Mr Lee’s statement “Well I was advised by Mr Wenzel not to discuss pre-accident things which may complicate the issue” as incredulous.
63. In considering the material as outlined, and mindful that both Dr Koller and Dr Dinnen were of the opinion that Mr Lee’s retrospective falsification could be explained as a consequence of his mood disorder, I conclude that there is insufficient material before me which would allow me to conclude beyond reasonable doubt that the incidents he relied upon did not occur.
64. In addressing the other factual circumstance, namely, the clinical onset of the depression disorder I am mindful that clinical onset involves the determination of a time at which the first appearance of sufficient symptoms and signs occur which satisfy the diagnostic criteria thereby enabling a diagnosis to be made at that time (Lees v Repatriation Commission (2002) 125 FCR 331 considered and followed).
65. The material nominated to support a clinical onset of depressive disorder within the five year period of Mr Lee experiencing a category 1A stressor is that provided by Mr Lee, his wife and Dr Dinnen. In essence it is:
·Mr Lee stated that the ship returned in December 1959. His mother said “You’re an angry bastard”. He said he buried it. Stayed in bed for six weeks, having dreams, thinking about being beaten. Because he was home he had to stop drinking.
·Mrs Lee’s comment that Mr Lee was introverted and quiet when he returned from the Far East in 1959/60. She also noticed that when they were married he was sullen and a poor sleeper and that he got down in the dumps shortly after his first child was born in 1962.
·The sleeping at the watch incident in 1961 and his history post return in 1959 as suggestive that there was a mild sort of depressive illness or some sort of psychiatric illness from 1959 onwards, although Mr Lee did not come to clinical attention to 1996 (Dr Dinnen).
66. The material before me that suggests the clinical onset of the depressive disorder did not occur within a five year period of Mr Lee experiencing a category 1A stressor is as follows:
·There is no contemporaneous Naval administrative or medical record of Mr Lee suffering the two traumatic incidents.
·There is no Naval medical or administrative record of Mr Lee complaining of depressive symptoms during his service.
·There is no assertion by Mr Lee that he sought medical attention for depressive or psychiatric-type symptoms during his 20 years of Naval service.
·There is record of Mr Lee seeking medical attention for many minor conditions during his Navy service. There is also record of Mr Lee receiving medical attention for stress, chest infection and concerns about impotence in 1975.
·There is material in the Navy medical files that:
-he was certified fit for diving in 1960 and that he did become a diver.
-That he was certified fit for submarine duty in 1964/65.
-That he was medically downgraded after his return from Tripler in 1975 and for reasons not related to a psychiatric condition.
-That he was medically reclassified to full fitness prior to discharge in 1977.
·That there is material that indicates that he had a successful Navy career, which he states he enjoyed in the main, despite his disciplinary history of sleeping on duty, punching the coxswain in Scotland and electing to have a court martial in 1975.
·That the first episode of psychiatric illness appears to have been when he was employed by BHP Collieries in the 1980s.
·That Mrs Lee in interview with Dr Morris indicated that mental health symptomatology first occurred around “the mid 1970s”.
·That the first presentation in the clinical arena was in 1996, at which and after which his clinical psychiatric symptoms have been documented.
67. Furthermore any assessment of the factual situation involves consideration of the reliability of Mr Lee as a historian. I have canvassed the differing views of both Dr Dinnen and Dr Smith. I recognise that Mr Lee has created for himself a credit issue as a consequence of the purported death of Mr Ho. Whether such inaccurate history was a consequent of conscious retrospective falsification (Dr Smith) or a consequent of the mood disorder (Drs Koller, Dinnen), the issue remains as to the reliability of his history. In relation to the incidents Mr Lee’s story was corroborated in the main by the others. On the issue of clinical onset the material is scant, with description of symptoms within five years of the incidents reliant upon the history provided by Mr and Mrs Lee. Mrs Lee’s recall appears inconsistent as regards what she told Dr Dinnen and what is recorded in the report of Dr Morris of 19 September 2002 (onset of symptoms in the mid 1970s). I note that the actual descriptions of symptoms in the five years post the two assaults is not detailed and the best Dr Dinnen is able to state is that the history as provided is suggestive of an onset in 1960, without any clear definition of symptoms to satisfy the criteria for the diagnosis of a depressive disorder.
68. In the absence of any documented Naval or other formal medical record detailing symptoms and diagnostic criteria necessary for the diagnosis of a psychiatric disorder, let alone a depressive disorder, during his Naval service over 20 years (stress and being despondent being his description of symptoms at Tripler in 1975, but not borne out in available records) and in the presence of Naval medical and career records that make no mention of psychiatric symptomatology, one is left with the uncorroborated statements as to his clinical history provided by Mr Lee and inconsistent statements by his wife.
69. In the light of the material I have addressed I conclude beyond reasonable doubt that Mr Lee’s clinical onset of depressive disorder did not occur within five years of the two assaults in 1959. Such a finding is made for the reasons alluded to earlier and which may be summarised as follows:
·Unreliability of Mr Lee’s evidence, with any acceptance of his evidence requiring some corroboration by way of a record or factual corroboration by an individual.
·The difficulty that Mr Lee’s unreliability engenders in the opinions given by the psychiatrists/psychologists.
·The variable evidence given by his wife.
·The absence of clinical symptomatology within the five year period which would permit a psychiatrist to determine the clinical onset of a dysthymic disorder in accordance with the nominated diagnostic criteria.
·The absence of any Naval medical record suggestive of the presence of a psychiatric disorder during his 20 years of Naval service, coupled with much medical/psychological scrutiny in association with his desire to undertake a diving course in 1960 and subsequently his transfer to submarines in 1965.
·The documented clinical history that he did not seek or receive medical attention for his depressive disorder until 1996 even though there may have been an earlier work related episode when working for BHP Collieries in the mid-eighties, for which it would appear no medical treatment was sought.
70. As a consequence of my finding that a fact, being an essential element of the hypothesis (clinical onset of dysthymic disorder within five years of experiencing a Category 1A stressor), has been disproved beyond reasonable doubt, I am satisfied beyond reasonable doubt that Mr Lee’s dysthymic disorder is not related to his service, and that his claim pursuant to the particular SoP analysis must fail.
71. I note that the Statement of Principles Instrument No. 58 of 1998 was the operable instrument at the time the Repatriation Commission decision was made. I note that the appropriate factor is factor 5(b) – “experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder”.
72. The reasons I have previously outlined when considering the current SoP continue to apply when consideration of Mr Lee’s claim under the earlier SoP is undertaken. In particular, I note the time frame is two years, within which the clinical onset must occur and that again I would find and for the reasons nominated earlier that an essential factual element of the hypothesis (the clinical onset within two years) would be disproved beyond reasonable doubt. Again, I would be satisfied beyond reasonable doubt that Mr Lee’s dysthymic disorder is not related to his service and his claim must fail.
73. In addressing the second nominated hypothesis that chronic pain has led to the onset of depressive disorder, I note that factor 6(a)(ix) within SoP Instrument No. 27 of 2008 concerning depressive disorder states:
(ix) having chronic pain of at least three months duration at the time of the clinical onset of depressive disorder;
Paragraph 9 defines “chronic pain” as meaning “continuous or almost continuous pain, which may or may not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities or activities of daily living”.
74. While I observe that such a hypothesis has been postulated, material pointing to all the definitional elements within the term “chronic pain” has not been placed before me. In so stating there is an absence of material pointing to the nature of the pain, the nature and effect of analgesic medication and the pain being of a level to cause interference with usual work or leisure activities or activities of daily living. The only material of relevance before me is that in 1999 Mr Lee had to stop particular water leisure activities because of the pain.
75. I would further observe an absence of detail in the material as to what particular period a diagnosis of chronic pain is postulated to have been established, in order that the second element of the factor can be assessed (namely, the clinical onset of the dysthymic disorder), which I have earlier noted is somewhat of a conundrum. I would also note that Dr Dinnen does not support such a hypothesis as the depressive disorder in this matter is not of the kind that is associated with chronic pain disorder with the depressive disorder being in Dr Dinnen’s opinion intermittently present for many years prior to the onset of the chronic pain.
76. Without definition of the issues that I have outlined, the material before me in my view does not point to each essential element of the factor, namely matters associated with the definition of chronic pain, the point of time at which the chronic pain is postulated to exist and issues surrounding the clinical onset of the depressive disorder.
77. In such circumstances, a reasonable hypothesis is not established and the claim must fail. Consideration under the earlier SoP No. 58 of 1998 involved consideration of a similar factor 5(e) and a similar definition of chronic pain with the latter having to exist for six months. For the same reasoning process a reasonable hypothesis is not established and the claim must fail.
78. Finally in addressing the issue of impotence, I note that the two relevant SoPs are Instrument No. 17 of 2005 and Instrument No. 97 of 1996 (as amended by Instrument No.16 of 2002), being the SoP relevant to the time at which the primary decision was made. In both SoPs the factor relied upon by the Applicant nominates that Mr Lee be suffering from a clinically significant mood disorder with depressive features at the time of the clinical onset of erectile dysfunction (factor 5(a) of SoP No.17 of 2005) or suffering from a specified psychiatric condition at the time of the clinical onset of impotence (factor 5(a) of SoP No.97 of 1996). I also note the definition of “clinically significant” contained within paragraph 8 of SoP No. 17 of 2005 to mean “sufficient to warrant ongoing management which may involve regular visits (for example, at least monthly), to a psychiatrist, counsellor or general practitioner”. I also note that “a specified psychiatric condition” is defined with paragraph 7 of SoP No. 97 of 1996 to include a psychiatric condition with depressive features.
79. For Mr Lee to be successful in his claim under either of the two factors nominated, the clinically significant mood disorder with depressive features, or a specific psychiatric condition would have to been determined to be related to service. As I have found to the contrary, the claim for impotence must fail.
80. The decision under review is affirmed in relation to both the dysthymic disorder and any secondary psychiatric condition said to have being caused or contributed to by the dysthymic disorder and impotence.
I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: ..............[sgd]..................................................................
AssociateDates of Hearing 6 - 7 August 2008 and 22 October 2009
Date of Decision 24 December 2009
Counsel for the Applicant Mr M Vincent
Solicitor for the Applicant Ms S Hahn, Dibbs Barker
Counsel for the Respondent Mr G Purcell
Solicitor for the Respondent Mr N Bunn, Department of Veterans’ Affairs
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