Gallagher and Repatriation Commission
[2009] AATA 294
•29 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 294
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2651
GENERAL ADMINISTRATIVE DIVISION ) Re PHILIP NEILL GALLAGHER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr I Alexander, MemberDate29 April 2009
PlaceSydney
Decision The decision under review is AFFIRMED ....................[sgd]..........................
M D Allen
Presiding Member
CATCHWORDS
VETERANS ENTITLEMENTS: Claim for Post Traumatic Stress Disorder - satisfied on balance of probabilities that Appplicant did not suffer from Post Traumatic Stress Disorder - decision under review affirmed.
LEGISLATION
Veteran’s Entitlements Act 1986: Ss 120(1), (3), (4), (6); s 120A
CASE LAW
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Gosewinkle (2000) 59 ALD 690
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Smith (1986-7) 15 FCR 327REASONS FOR DECISION
Senior Member M D Allen
Dr I Alexander, Member1. By application made the 22nd day of June 2007, the Applicant sought review of a decision by the Veterans Review Board (“VRB”) that affirmed a prior determination of the Respondent that denied his claim for pension for a Post Traumatic Stress Disorder (“PTSD”) on the basis that the Applicant did not suffer from the said disease.
2. As the relevant incidences giving rise to the Applicant’s claim were alleged to have occurred whilst the Applicant was on operational service, as that term is defined in section 6C of the Veteran’s Entitlements Act 1986 (“VEA”), the standard of proof in this matter is that mandated by Ss 120(1) and (3) VEA.
3. Subsections 120(1) and (3) VEA provide that any disease suffered by a veteran and claimed to be war-caused shall be accepted as being so caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after a consideration of all of the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the disease suffered by the Applicant with the circumstances of the service rendered by him. Pursuant to s 120A VEA, a hypothesis will not be a “reasonable hypothesis” unless it conforms to a so called Statement of Principles (“SoP”) issued by the Repatriation Medical Authority.
4. Subsection 120(6) VEA provides that neither party to this review bears any onus of proof.
5. The manner in which the Tribunal must approach its task where an SoP exists was set forth by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The so called ‘Deledio Principles’ are now so well known as not to require recapitulation here.
6. In this matter, two considerations were before the Tribunal. The first, namely, whether any illness suffered by the Applicant was war-caused is, as stated above, to be determined pursuant to Ss 120(1) and (3) of the VEA. The primary question here, however is, from what injury or disease, if any, does the Applicant suffer. That question is to be determined to the Tribunals “reasonable satisfaction” pursuant to Ss 120(4) VEA. See Benjamin v Repatriation Commission (2001) 70 ALD 622.
7. As was pointed out in Repatriation Commission v Gosewinkle (2000) 59 ALD 690 at 703, this Tribunal,in order to be satisfied a disease exists, must apply all of the diagnostic criteria as set out in the applicable SoP, (if one exists). See also Lees v Repatriation Commission (2002) 36 AAR 484 at 489 paragraph 16.
8. In this matter, the applicable SoP is Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999. The current instrument relating to PTSD is Instrument No. 5 of 2008, however both parties agree that Instruments No’s 3 and 54 of 1999, being the instruments that were in force at the time the Respondent made its initial decision in this matter, are more favourable to the Applicant and therefore should be applied by the Tribunal. See Repatriation Commission v Gorton (2001) 110 FCR 321.
9. As amended, Instrument No. 3 of 1999 gives as the diagnostic criteria for PTSD the following:
“2.(b) For the purposes of this Statement of Principles, “post traumatic stress disorder” 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 experiences, 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 of 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 a month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.”
10. The term ‘severe stressor’ is defined in Instrument No. 54 of 1999 as:
“1.A “experiencing a severe stressor” means the person experienced, witnessed, or was confronted with an event or events that involved actual threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other services where the Veteran’s Entitlement Act applies, events that qualify as sever stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.”
11. The Applicant first applied to have PTSD accepted as war-caused in 1997. Following receipt of that claim by the Respondent, the Applicant was examined by psychiatrist Dr Port. In his report of 10 March 1997, Dr Port recorded the following history:
“He told me that he’d been in Vietnam in the early 1970s but did not see action and never fired a shot.
He told me he was there in mostly quiet times, the first two months in infantry and then the next eight months drafting in the base, although during that time he also rode “shot gun” on vehicles.
He did not have intrusive memories or flashbacks and did not have intense distress when exposed to anything that reminded him of Vietnam.
He was able to join in the Vietnam Legion [sic], the RSL and Anzac Day marches and did not have withdrawal from people or difficulty sleeping.
While he was on tour on Vietnam he was on the base where alcohol was freely available and got into the habit of drinking very heavily and unfortunately this pattern has persisted up until the present day…”
Dr Port went on to record:
“ His father was irritable in a very similar way and there is a family history of alcohol problems.”
and concluded his report by stating:
“ I do not believe he was suffering from post-traumatic stress disorder but he did suffer from alcoholism.”
12. The history obtained by Dr Port conflicts significantly with the Applicant’s evidence to this Tribunal and to the history given to Dr Dinnen, psychiatrist, to whom the Applicant was referred by his solicitors.
13. The Applicant again applied to have PTSD accepted as a war-caused disease in 2003. At this time he was referred to psychiatrist Dr Vickery.
14. In his report dated 19 November 2003, Dr Vickery noted the report of Dr Port and that :
“ Mr Gallagher had subsequently participated in a lifestyle course several years ago and felt that he had learnt ‘there are all kinds of degrees of PTSD’.”
15. Dr Vickery recorded the Applicant as stating that he had felt “lucky to have gotten out of the fighting” (following a transfer to 1 ACAU) and that there were no intrusive memories or flashbacks of his service in Vietnam. Significantly, Dr Vickery records the Applicant as socialising with other Vietnam Veterans and their wives, attending the RSL club and RSL sub-branch meetings and attending ANZAC Day marches.
16. Regarding the Applicant’s mental state, Dr Vickery reported:
“There was no evidence of clinically significant anxiety, major depression, paranoid delusional ideation, formal thought disorder or cognitive impairment.
There were no dissociative symptoms, excessive psychological reactivity, efforts to avoid traumatic thoughts or an inability to recall traumatic events.”
“There was no clinically significant psychopathology of PTSD or an anxiety disorder however there were periodic binges of alcohol which appeared to have some familial basis and related to his obsessional rumination.”
17. Following the rejection of his claim in 2003 and the affirmation of that decision by a VRB in 2004, the Applicant was referred by his solicitor to psychiatrist Dr Dinnen. Dr Dinnen’s report of 18 January 2005 is at pages 94-100 of the documents prepared for the Tribunal pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975. In that report Dr Dinnen diagnosed PTSD with associated Alcohol Abuse not withstanding his observation that:
“ there are no florid or classical features of post traumatic stress disorder.”
In his report and subsequently in his oral evidence, Dr Dinnen attributed this lack of clinical features to his professional experience that veterans suffering from psychological consequences of their operational service commonly had a coping style of “avoidance and denial”. He implied that this was sufficient to hide the symptoms from an examining psychiatrist. He indicated that his opinion was based on his own clinical experience and the fact that the Applicant had suffered stressful events in Vietnam. On this occasion, however, Dr Dinnen did not directly consider the diagnostic criteria in either DSM –IV or the SoP.
18. Significantly, Dr Dinnen, in the history he obtained from the Applicant states:
“ He told me that five years ago through the Vietnam Veteran’s Association he attended a life style group. They explained his condition to him, as resulting from his service…”
19. Subsequent to seeing Dr Dinnen, the Applicant was referred to psychiatrist Dr Robinson by the Respondent. In his comprehensive report, which included a detailed history, Dr Robinson diagnosed Alcohol Abuse and Obsessive Compulsive Personality Disorder. He noted that the Applicant did not have the clinical features of PTSD, in particular stating:
“…my findings were consistent with Dr Port in that he found that Mr Gallagher did not have intrusive memories or flashbacks, did not have intense distress on exposure to anything that reminded him of Vietnam, did not show any avoidance of events that reminded him of Vietnam, did not have withdrawal from people and did not have any difficulty sleeping.”
20. The Applicant was advised by some fellow veterans to consult psychiatrist Dr Altman. Dr Altman is now the Applicant’s treating psychiatrist and provided a report dated 20 December 2007. In that report, Dr Altman diagnosed the Applicant as suffering from severe chronic PTSD with associated Major Depression and Alcohol Abuse.
21. Although Dr Altman addresses the DSM-IV criteria for PTSD, his description of dreams and intrusive, distressing thoughts are not consistent with the Applicant’s evidence or the later report of Dr Dinnen.
22. The Applicant was again referred to Dr Dinnen by his solicitor in February 2008. In his second report Dr Dinnen, in contrast to his previous report, addressed the DSM-IV criteria for the diagnosis of PTSD.
23. Notwithstanding the attention to the DSM-IV criteria, Dr Dinnen does not address the specific events said to have resulted in a response involving intense fear, helplessness or horror and completely avoids the essential element of diagnostic criteria B, namely that the “traumatic event is persistently re-experienced.”
24. Cross-examined, Dr Dinnen conceded that he enquired specifically regarding the symptoms of PTSD. That some symptoms were not obvious was explained by Dr Dinnen on the basis that the Applicant tends to “gloss over” matters and deals with his problems by way of “avoidance”.
25. In dealing with the evidence of Dr Dinnen, we state specifically that the prescription of Lovan, an anti-depressant medication by Dr Altman is not, of itself, of diagnostic value for the presence of a PTSD. Compare Dr Lewin who pointed out that Lovan could have beneficial effect on symptoms associated with Alcohol Abuse and Dr Altman who also diagnosed the presence of Depression so that one might expect an anti-depressant medication to be effective in treating this condition. Also, where both DSM-IV and the SoP speak of “recurrent distressing dreams of the event”, what is referred to is the traumatic event experienced by the sufferer and dreams of other events, for example, in the Applicant’s case of his being, contrary to the fact, in actual combat, do not fulfil that criterion.
26. The relationship of dreams to the diagnosis was dealt with by Dr Lewin, psychiatrist, who examined the Applicant on behalf of the Respondent. In his evidence, Dr Lewin pointed out that in the history he obtained from the Applicant the Applicant had no particular recollection of dreams following upon what he claimed were traumatic events but only they occurred in later years. Accepting that the Applicant did have a disturbed pattern of dreaming, Dr Lewin implicated the Applicant’s heavy alcohol intake as the cause as alcohol disturbs the pattern of dreaming.
27. Dr Lewin also pointed out that non specific nightmares are not related to a PTSD.
28. In his report, Dr Lewin, after a comprehensive history being obtained, concluded that the Applicant did not have PTSD on the basis that he clearly suffers from long standing Alcohol Abuse and that many of his reported symptoms were consistent with Alcohol Abuse.
29. Dr Lewin also pointed out that in assessing whether a person has a PTSD it is important not to ask leading questions, for example “do you have intrusive thoughts?”
30. The history given by the Applicant to various medical practitioners has not been consistent and we are satisfied that his evidence has been tainted by becoming aware of the signs and symptoms descriptive of a PTSD. For example, in his report of 16 June 2008, Dr Lewin states:
“ Mr Gallagher did not seek treatment for a drinking problem or for any other psychiatric treatment over many years. He told me that he attended a number of psychiatrists for the purpose of medio-legal assessment. When they told him that he had a drinking problem, he did not accept that advice. He told me that he learned of post traumatic stress disorder from his mates and that he was informed about the symptoms of post traumatic stress disorder when he watched a video and when he participated in a life style course which contained lectures about post traumatic stress disorder. He said “ I learned what was wrong with me.”
31. Although not called for cross-examination, the report of cardiologist Professor O’Rourke was admitted into evidence without objection.
32. In that report, Prof O’Rourke obtained the following history:
“ Mr Gallager said that he returned to Australia in October of 1971 and back to Hunter Water. He said that his drinking habits continued but his alcohol consumption fell as he took on family responsibilities. He said that he was not drinking every night of the week. He said however his consumption increased around 1975 and by 1980 there were problems with his marriage and a separation of seven months. His children were just six and four years old at this time. He said that alcohol was one of the reasons though he said there were other reasons associated with infidelity on both sides. These problems appear now to have been settled. Mr Gallagher goes out dancing with his wife on most Wednesday nights. The couple had started this activity about five years ago thought not as active in their ability to dance as they were on account of Mr Gallagher’s back. He said that he has slowed down and that his wife also has arthritis.”
33. Prof O’Rourke refers to inconsistencies in two drinking questionnaires lodged by the Applicant with the Respondent in pursuit of his various claims.
34. In evidence to the Tribunal, the Applicant stated that he hardly drank at all prior to entering the Army. He said he drank alcohol “moderately”, mostly on weekends.
35. An alcohol questionnaire was completed by the Applicant dated 13 January 1997. In that document, signed by him, the following questions and answers occur:
“1. When did you begin to consume alcohol on a regular basis?
Answer – After joining the Army in 1970
2. Was there any particular reason for doing so?
Answer – To see what it tasted like, to have a drink with my mates, to be accepted by the group”
36. In a later alcohol questionnaire dated 3 October 2003, the following questions and answers occur:
“1. When did you begin to consume alcohol on a regular basis?
Answer – In Vietnam
37. Prof O’Rourke’s report states at page four:
“ Mr Gallagher told me that he had not drunk prior to service but according to the letter of Dr Thursby dated 11th March 1998 Mr Gallagher drank three to four beers on two to three occasions per week prior to Army service.”
38. The only conclusion that we draw from these documents with regard to the Applicant’s evidence is that the Applicant has deliberately set out to maximise the effect Army service had upon the rate at which he consumed alcohol. In particular we note that whereas the first alcohol questionnaire implicates Army service generally, the second questionnaire implicates Vietnam, that is to say, it specifically implicates service for the purposes of the VEA.
39. In the history taken by him, Dr Dinnen does not nominate any specific incident where the Applicant reacted with intense fear, helplessness or horror to any event. As to the event where his friend was wounded, Dr Dinnen in his report of 18 January 2005 refers to the Applicant feeling guilty that he was not with his friend at that time. We do not accept that a feeling of guilt can be equated with a response involving intense fear, helplessness or horror.
40. In his second report, Dr Dinnen refers again to the wounding of the Applicant’s friend and the event where the Applicant nearly shot the same friend when on patrol. In his second report, Dr Dinnen states:
“ The patient said he was terrified while he was in Vietnam. That was compounded by his feeling that they shouldn’t have been fighting there at all, that the war should have been over. He thought it was over already. He was horrified, fearful, helpless.”
But what Dr Dinnen does not say is that the Applicant reacted to any specified events with intense fear, helplessness or horror.
41. Dr Lewin also took a history of the event where the Applicant claims that he nearly shot his friend because he re-entered the platoon harbour area from an incorrect direction but recorded the Applicant as stating simply: “it was not a nice feeling”.
42. In his first report, Dr Dinnen simply refers to the Applicant as being “on edge” whilst in Vietnam.
43. In his first report, Dr Dinnen took a history of six members of the Defence and Employment Platoon (“D&E P”) being killed in the one action and the Applicant being affected as members of the D&E P and his unit “were good mates”. In evidence the Applicant said that he heard of the incident “on the grapevine” and did not know the personnel who were killed. He described his reaction as one of “what a bloody waste”.
44. Dr Dinnen, in neither of his reports, refers to a specific incident where the Applicant alleges he could have shot some children who were in an area they were not supposed to be. The Applicant told Dr Lewin of this incident but described it as being a source of distress at the time. Distress does not, in our finding, equate to intense fear, helplessness or horror.
45. Dr Vickery in 2003 also took a history of the Applicant’s Vietnam Service. He recorded:
“Mr Gallagher served in South Vietnam in 1971 when he went on patrols which he found was “very stressful”. He transferred to a drafting position after several months, however, a short while later his mate had gone out on patrol when a mine detonated. Mr Gallagher felt guilty that he had not been there to help, at the time he was waiting in the base at his new posting.
In June 1971 there were six soldiers killed in one incident and he felt “lucky to have gotten out of the fighting.” He would travel out to the provinces as a “shot gun” in the transport. He was not involved in any “action” with the enemy. There were no intrusive memories or flashbacks of his service in Vietnam.”
Significantly Dr Vickery also noted that:
“Mr Gallagher had joined the Vietnam Legion and went on the Anzac Day marches in the past.”
46. Dr Robinson also questioned the Applicant regarding the incidents of his Vietnam service. He recorded the Applicant as stating that he was worried during the night patrols but nothing actually happened. He was always worried about the possibility of booby traps but he never actually came across one. No history was taken of any specific incidents whilst on patrol.
47. Dr Robinson also refers to the wounding of the Applicant’s friend and stated:
“He explained that he feels guilty now that he never made an effort to find out how his mate was.”
No history was taken of any feelings of horror, intense fear or helplessness.
48. Dr Altman did not state that the Applicant experienced nightmares relating to any specific event in South Vietnam. Both Dr Altman and Dr Dinnen referred to the Applicant experiencing intrusive memories. Dr Altman refers to them occurring with or without a triggering stimulus whereas Dr Dinnen refers to intrusive memories being triggered when the Applicant visits the RSL.
49. If the Applicant did experience distressing thoughts when visiting the RSL it does not explain why a considerable part of his regular and sustained drinking has been done at RSL clubs. Also, contrary to other histories taken, the Applicant has associated with other Vietnam veterans, for example, Dr Vickery pointed out the Applicant was a member of a group of five couples of Vietnam veterans and their wives that would meet together every month or so and go to social outings together.
50. Dr Dinnen referred to the Applicant experiencing memories, sometimes upsetting, when the Applicant hears the noise of a helicopter. Memories do not equate to “flashbacks” and Dr Lewin makes this point at page 9 of his report of 16 June 2008, namely:
“ Mr Gallagher said that he experienced “flashbacks and nightmares”. When describing flashbacks, Mr Gallagher reported a history of ordinary memories. He did not describe the characteristic phenomena of flashbacks and he was able to put these matters out of his mind. When describing “nightmares” Mr Gallagher described dreams which had themes of violence unrelated to any actual war time experience. The themes did not make reference to actual experiences. Mr Gallagher did not report dissociative symptoms or other phenomena of post traumatic stress disorder. I looked for evidence of this, but found no objective sign in the examination.”
51. The history given by the Applicant to the various medical practitioners who have examined him and the signs and symptoms described by him have been inconsistent. What is noteable is that when the Applicant first consulted Dr Dinnen, a psychiatrist who is very experienced in the treatment of veterans, Dr Dinnen was unable to observe any florid or classical features of PTSD. This finding is consistent with the findings by Dr’s Port, Vickery and Robinson.
52. As stated above, a complicating factor is that the Applicant has now been made aware of the diagnostic criteria for a diagnosis of PTSD to be made. For example, in evidence he said “I am hypervigilant – I’ve learnt the word”. That the Applicant has now set out to maximise the effect war service had upon him is made clear by his reponses in the two alcohol questionnaires.
53. On the material before us we find that we are more convinced by the reports and evidence of Dr’s Lewin and Robinson reinforced as they are by the reports of Dr’s Port and Vickery. We are reasonably satisfied that the Applicant does not suffer from PTSD but that the correct diagnosis is one of Alcohol Abuse, a condition that has been accepted by the Respondent as war-caused.
54. As we are reasonably satisfied (i.e satisfied on the balance of probabilities see Repatriation Commission v Smith (1986-7) 15 FCR 327) that the Applicant does not suffer from PTSD, the decision under review is AFFIRMED.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr I Alexander, Member
Signed: ..............{sgd}..................................................
M. Corcoran, AssociateDate/s of Hearing 14 & 15 April 2009
Date of Decision 29 April 2009
Counsel for the Applicant Mr. M Vincent
Solicitor for the Applicant Legal Aid Commission
Solicitor for the Respondent Ms. J Warmoll, Department of Veteran Affairs
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