Jenkins and Repatriation Commission
[2008] AATA 359
•5 May 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 359
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2006/0030
VETERANS' APPEALS DIVISION ) Re COLIN JENKINS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr J D Campbell, Member
Rear Admiral A R Horton, MemberDate5 May 2008
PlaceSydney
Decision 1. The appropriate diagnosis for Mr Jenkins’ claimed condition is post traumatic stress disorder with major depression.
2. The disease of post traumatic stress disorder with major depression is not a defence caused disease.
3. Mr Jenkins’ claim is unsuccessful and the decision under review is affirmed in so far as it pertains to entitlement.
.................(Sgd)........................
Dr J D Campbell, Presiding Member
CATCHWORDS – Veterans’ Entitlement – Claim for post traumatic stress disorder and depression – Diagnosis of claimed condition – Relationship of claimed condition to service.
Veterans’ Entitlement Act 1986, sections 68, 69, 70, 120(4), 120B, 196B
REASONS FOR DECISION
5 May 2008 Dr J D Campbell, Member
Rear Admiral A R Horton, Member1. Mr Jenkins served in the Royal Australian Navy from 6 February 1967 to 5 February 1988. Mr Jenkins trained as a pilot and undertook flying duties until 1977. Mr Jenkins’ period of service, between 7 December 1972 and 5 February 1988, is classified as defence service pursuant to sections 68 and 69 of the Veterans’ Entitlement Act 1986 (the Act). Pursuant to section 70 of the Act, Mr Jenkins is entitled to seek pension by way of compensation for any incapacity arising from defence caused injury and/or disease.
2. Mr Jenkins lodged a claim on 10 October 2003 seeking pension by way of compensation for incapacity arising from post traumatic stress disorder (PTSD) and depression. On 29 April 2004 the Repatriation Commission concluded that neither Mr Jenkins’ post traumatic stress disorder nor depressive disorder was related to his defence service. This decision was reviewed and affirmed by the Veterans’ Review Board on 8 November 2005, with that Board varying the diagnosis to one of post traumatic stress disorder with major depression. Further, the Veterans’ Review Board set aside the decision in relation to assessment and, in substitution, determined that the pension be assessed to continue at 40 per cent of the General Rate until 29 July 2005 and at 80 per cent of the General Rate from and including 30 July 2005.
3. Following discussion between the parties and the Tribunal, the Tribunal determined that the issue of entitlement would be the subject of a prior determination, before attempting to address the issue of assessment. In so doing, the Tribunal acknowledged the inherent complexity of the issues involved in the process of assessment, the need for forensic accountant assistance and the costs involved in such circumstances. If Mr Jenkins is unsuccessful in his entitlement claim, opportunity to further address the issue of assessment will be given to both parties, if they so desire.
Issues:
4. The relevant issues in this matter are:
1)What is the appropriate diagnosis for Mr Jenkins’ claimed condition(s)?
2)Is Mr Jenkins’ diagnosed condition(s) a defence caused disease?
Decision:
5. For the reasons stated later in this decision, we find that:
1)The appropriate diagnosis for Mr Jenkins’ claimed condition is post traumatic stress disorder with major depression.
2)The disease of post traumatic stress disorder with major depression is not a defence caused disease.
3)Mr Jenkins’ claim is unsuccessful and the decision under review is affirmed in so far as it pertains to entitlement.
Mr Jenkins’ evidence:
6. Mr Jenkins was born and educated in Parramatta. Mr Jenkins left school at age 17 and joined Alcan as a trainee production engineer. He stayed with Alcan for four years before joining the Navy to train as a pilot in February 1967. Mr Jenkins completed his pilot training in June 1968, and was posted to 724 Squadron at Nowra. Mr Jenkins remained with the squadron until early 1972, with alternating periods at Nowra and at sea aboard HMAS Melbourne.
7. From March 1972 until September 1972, Mr Jenkins was posted to a Naval Air Station in Texas (USA) for Landing Signals Officer training, followed by a further few months, until December 1972, at Rhode Island to become night qualified.
8. In July 1970 Mr Jenkins described an incident involving the launching/landing of an aircraft on the flight deck of the USS Lexington (the Lexington incident). From a distance of about 80 metres, he observed a tall fellow walk straight into the propeller of the aircraft. He observed his body being catapulted into the air, before landing in the middle of the flight deck. He observed the body being removed on a stretcher and the flight deck crew being issued with plastic bags to pick up the body parts prior to commissioning a fire hose to wash the remnants over the side of the ship.
9. Mr Jenkins remembers being absolutely shocked by the incident but he, as did others, continued to carry on with the busy schedule. Mr Jenkins remembers coming ashore two to three days later and drinking fairly heavily in the officers’ mess. Mr Jenkins remembers talking to a Navy doctor in the mess about this incident, with the doctor (also a qualified pilot) suggesting that Mr Jenkins see him at the hospital facility. Mr Jenkins attended the next week and was prescribed Valium, because of his difficulty with sleeping; Mr Jenkins referred to a heavy consumption of alcohol following the Lexington accident. Mr Jenkins stated that he continued with Valium for a week and thereafter elected not to take the medication.
10. Mr Jenkins described the onset of hypertension problems while in the United States (which led to his grounding in 1972). On return to Australia, Mr Jenkins was posted as the Landing Signals Officer and staff officer to the Carrier Air Group Commander.
11. In the latter role, when aboard the HMAS Melbourne in 1973, Mr Jenkins described observing an incident in which a friend, while launching in an A4, went into the water ahead of the carrier (the Melbourne incident / the Skyhawk incident). Mr Jenkins stated the pilot had not used his ejection seat, electing to stay with his plane. Mr Jenkins next observed a dropped fuel tank, before observing a helicopter hovering over the pilot, who had manually released himself from the cockpit. The pilot was rescued.
12. Mr Jenkins described his feelings at the time as “disbelieving”, “shocked, angry, helpless”, with relief superimposed as a consequence of a successful rescue. Mr Jenkins also was reminded of an incident when he was aboard the USS Lexington, which involved a pilot taxiing his plane over the side, with both incidents reminding Mr Jenkins as to the dangers involved in operating planes off aircraft carriers.
13. Mr Jenkins stated that he remained grounded until 1976 because of his hypertension. In 1976 Mr Jenkins stated that his medical flying restriction was lifted and he qualified on HS 748 passenger aircraft, after which he was posted to Nowra, where he remained until the end of 1977. From 1978 Mr Jenkins indicated he was posted to a succession of non-flying posts until leaving the Navy in February 1988.
14. In a witness statement (A2), Mr Jenkins detailed an incident that occurred at Avalon Airfield on 29 November 1977 (the 1977 Incident / the Avalon incident). Mr Jenkins, the aircraft captain, had been advised of strong cross-winds prior to landing. He described the approach and touch down as normal, but upon landing the cross-wind became gusty. Mr Jenkins said he lost directional control of the aircraft, with the aircraft veering off the runway, narrowly missing some structures beside the runway. Mr Jenkins described the aircraft as quickly coming to rest because of the rain affected soft ground. The aircraft, containing 25 passengers and two other crew, suffered no structural damage as a result of the incident.
15. Mr Jenkins described his reaction to the accident as very severe, as defined by the following characteristics:
·“I saw my life pass before my eyes”;
·“Belief that I had narrowly avoided death”;
·“Severe trembling and difficulty in controlling my actions”; and
·“I totally lost confidence”.
16. Mr Jenkins, in his statement, noted that his co-pilot flew the aircraft back to Nowra. Mr Jenkins also stated that as a consequence “I resolved never to fly again as crew of an aircraft”. He also stated that those “reactions started almost immediately, and it took about two years to come to terms with my situation”.
17. Mr Jenkins, in the statement, described his subsequent symptoms as including:
·Very poor sleep patterns with recurring nightmares;
·Flashbacks;
·Heavy drinking of alcohol;
·Extremely irritable and angry; and
·Deep humiliation and shame.
18. Mr Jenkins further stated that after leaving the service, he seemed to be coping with life until he attended a Navy reunion in 1998. To attend this reunion at Nowra, Mr Jenkins accepted travel from Walcha in a light aircraft piloted by a friend. Mr Jenkins described everything as normal until making a landing approach at Nowra when he suffered a “flashback”, reliving the 1977 incident at Avalon.
19. In oral evidence Mr Jenkins affirmed the accuracy of his written statement. Mr Jenkins further described his feelings at the time of the 1977 incident to include:
·“I believed at that stage I was dead”;
·“The potential was there for absolute catastrophe”;
·“Grateful” then “anger”; and
·“There was not much future for me”.
20. Mr Jenkins, in his oral evidence, stated that he flew the aircraft back to Nowra as the Captain, with that being the last time he flew in command of an aircraft. In subsequent evidence, Mr Jenkins stated that he flew as a co-pilot on four or five occasions after the incident. Mr Jenkins stated that, by agreement, he was moved in early 1978 to a non-flying posting. Mr Jenkins stated that he never got over the separation from flying and regrets that he may have made a wrong decision in agreeing to such a course, because many of his colleagues went on to enjoy successful flying careers with international airlines. Mr Jenkins stated that once he had lost his aircrew category, never having commanded a squadron and with his medical problems, he investigated his options and elected to leave the Navy at age 42. Mr Jenkins considered that by then he had lost all confidence, was angry and bitter, and also had to consider the welfare of his family.
21. After leaving the Navy in 1988, Mr Jenkins moved his family to Walcha, where he and his wife bought and operated a newsagency, an activity which is ongoing. Mr Jenkins described how everything went well until he noted that he was getting angry and abusive with the customers, with his wife taking over many of the work activities as the children had moved on. Mr Jenkins stated that about two years ago his wife took over full running of the newsagency and that he is left to fill in the day, which he does by attending daily at the newsagency, doing some tasks (mail and parcels) and spending time in the flat at the back of the newsagency watching television and having a cup of tea.
22. Mr Jenkins detailed that he had ceased drinking, after receiving treatment for depression with Lovan by Dr Altman, who he first saw in 2001 and who he continues to see bi-monthly. Mr Jenkins described that this referral to Dr Altman arose after initial discussion with his general practitioner, Dr Allen, during which the general practitioner suggested, after a discussion of his symptoms, that “I think you have got post traumatic stress disorder”. Following a discussion with an RSL delegate, Mr Jenkins made an application to the Department of Veterans’ Affairs and was eventually assessed by Dr Helme, a psychiatrist. Mr Jenkins saw Dr Helme on 6 November 2000 and described his attendance as being for 15 to 20 minutes. Mr Jenkins’ described the consultation ending as, “he [Dr Helme] stood up, hitched his pants up and said ‘That’s a lot of bullshit. You haven’t got PTSD’”. Mr Jenkins detailed the circumstances to Dr Allen, who at Mr Jenkins’ request (on advice from an RSL Advocate) issued a referral to Dr Altman.
23. Mr Jenkins described his main symptoms at that time as anger, intolerance and frustration for and with elderly women in counter transactions, as they waste his time. Mr Jenkins described his current symptoms as including anger, tiredness, telling people off, difficulties with sleeping (diagnosed with sleep apnoea), sadness about loss of opportunity, agitation with simple things, diminution in social activities and interpersonal contact. He referred to nightmares for the last three years in which, “I am high among cliffs flying without an aeroplane”, together with dreams about circumstances to do with the Lexington incident. He also referred to intrusive distressing thoughts about the various incidents a couple of times a day (the Lexington incident is the most distressing) and flashbacks (triggered in 1998 when landing at Nowra and including the Lexington and Melbourne incidents, and later the Avalon incident), with Mr Jenkins relating such flashbacks to the Avalon landing.
24. In cross-examination, Mr Jenkins described further incidents in his service career, which provided cause of concern. These included:
·an incident during his initial training on Tracker aircraft in 1969, when he nearly put his plane over the side of HMAS Melbourne;
·a difficult night landing on HMAS Melbourne in 1970 which “shook him up”; and
·circumstances when as Executive Officer at Garden Island in 1983, he had to discipline and gaol a naval rating with whom he had a close working relationship (the Garden Island incident).
25. Mr Jenkins stated that in his consultations with Dr Altman, it was Mr Jenkins’ decision to detail the order in which the incidents would be related, with his intention to start at the beginning, and work through the events without attempting to rate the events. When asked as to why the Garden Island incident (1983) was detailed out of chronological order by Dr Altman in his reports, Mr Jenkins thought that at some stage he had mentioned the Avalon incident (1977) in the first two or three consultations. Mr Jenkins again confirmed that it had been his intention to discuss the incidents with Dr Altman in the order they occurred.
26. In relation to his consultations with Dr Dinnen, Mr Jenkins acknowledged that he did not mention the 1969 and 1970 incidents on HMAS Melbourne, suggesting that there was insufficient time, in one consultation, to cover all the incidents. Mr Jenkins also confirmed that he was a social drinker prior to service; increased his alcohol intake after the Lexington incident for a limited period (1972, early 1973) and from 1972 to 1993 he was drinking on average two to three beers a day, and experienced an increase to some six to seven schooners after the Nowra incident in 1998, which continued until treatment with Lovan was commenced by Dr Altman. Mr Jenkins also detailed an incident in 1984 when he was prescribed Serepax by a Navy doctor to help him sleep because of flashbacks, with naval records indicating the difficulty in sleeping was related to family problems, and Mr Jenkins suggesting it was also around the time of the Garden Island incident.
27. While Mr Jenkins considered that the Avalon incident was the most serious of all the incidents, he believed that his failure to tell Dr Helme of the event was that:
I didn’t get that far. As I said, I was terribly nervous. I was – I didn’t know what the hell I was in for and I got my little tirade before we got too far down the track. So I am afraid you could probably say I ‘dropped my bundle’ (Transcript p66).
Further in response to a question as to why he did not mention the Avalon incident to Dr Altman until after five consultations, Mr Jenkins stated:
Because we were dealing with one issue at a time. I was – he was doing the consultations, leading the questions. When we finally got the whole thing thrashed out he said ‘Now, right, what else have we got to do?’ So that’s where we – it’s just you can’t cover everything in one hit or five hits. (Transcript p67)
28. In further answers to questions in cross-examination, Mr Jenkins acknowledged that his flight status was reinstated in late 1976, with an ability to fly in duel fitted aircraft only with another pilot. By September 1977, the issue of his fitness as a pilot was being considered at medical board examination in the knowledge that he was going to be posted away from his flying duties. Mr Jenkins denies that he was officially aware of the latter circumstances until after the Avalon incident. Mr Jenkins admits to his flying status being again reinstated in 1983, which he retained until the end of his service and for which he was paid an allowance, even though he was not called on to fly.
29. Mr Jenkins also considered that in hindsight, he had a psychiatric disease in 1973, the symptoms being at that time, difficulty with sleeping, irritability, heavy drinking, and occasional flashbacks about the Lexington incident. Mr Jenkins stated that the flashbacks would happen from time to time and he learnt to cope to the extent it was not a problem.
30. Mr Jenkins admitted to seeking assistance from Dr Allen in 1990 because of stress arising from difficulties with a landlord and an election to move to alternative premises. Further, Mr Jenkins affirmed that when he attended Dr Allen in August 2000, he did nominate the circumstances of the ex-navel rating, who was gaoled in 1983, walking into his shop as the catalyst which rekindled his service experiences. Mr Jenkins was unsure of whether or not he informed Dr Allen of the Nowra incident (1998) at that time.
Consideration and findings:
31. Foremost in this matter is a recognition that Mr Jenkins does contend that he has a mental health issue, involving both symptoms of anxiety and depression. We acknowledge that to attain an understanding of the nature and causation of this illness, exploration of issues and circumstances of Mr Jenkins’ childhood (for which we have little evidence), his 21 years of naval service, and the 20 odd years of his post-service activities, is necessary. This we recognise does involve a minimal time frame of some 50 years, Mr Jenkins’ memory of events that have occurred over that period, and a collation of documents particular to the claim.
32. Further, we recognise that by virtue of the claim process, focus is often centred on particulars that allow a better understanding of the issues, as well as assisting in the proper pursuit of a claim. We are also mindful that diagnostic criteria particular to specific mental health classifications have altered significantly over the years, with clinicians tasked to identify criteria (symptomatology) and the application of such criteria to a diagnostic formulation, not even formulated and/or understood at the time that the events leading to precipitation of the illness occurred. Likewise, we observe that the individual with the disease process is expected to have a detailed memory for events and outcomes that may have been experienced 10 to 50 years ago. It is with these understandings and the inherent shortcomings that consideration of Mr Jenkins’ claim is to be made.
33. We acknowledge that section 120(4) of the Veterans’ Entitlements Act 1986 provides that any findings made in this matter must be made on grounds of reasonable satisfaction (balance of probabilities). By virtue of section 120B of the Act and section 196B of the Act, we are aware that the task of whether the material before us raises a connection between the disease/injury and the particular service must be considered within the context of a particular Statement of Principles (SoP), which has been determined for the particular injury/disease. Further, we are mindful that the particular Statement of Principles must uphold the contention that the injury/disease is, on the balance of probabilities, connected with that service.
34. In this matter there is considerable material before us that relates to reflections and recollections from 2001 onwards. Mr Jenkins has detailed to us his attempt to recollect his version of service and post-service events covering more than 40 years, as well as providing some reflections on those events. We note the remainder of the evidence is concerned with his service and medical service records: the clinical notes of Dr Allen and Dr Altman, the reports of Drs Helme, Dinnen, Koller and Roberts, historical reports from Military Aviation Research Services and statements and evidence from Mrs Jenkins and the co-pilot at the time of the Avalon incident in 1977.
35. After consideration of all the material, and again mindful of the shortcomings inherent in a process requiring detailed memories of events over many years, we accept for the reasons which will be detailed later in this decision, that the events as nominated by Mr Jenkins as occurring during his service and post-service career did occur, with there being no evidence before us that they did not occur. Further, we also observe:
·That there are inconsistencies of detail in Mr Jenkins’ evidence when considered overall. Examples nominated relate to his flying activities after the Avalon landing; the triggering event leading to a request for psychiatric evaluation in 2000, being the ex-Navy seaman entering the newsagency in mid 1998 as described by Dr Allen; the different reflections as to why the Avalon incident was not apparent to Dr Altman until after many months of consultations (Mr Jenkins wishing to relate events in chronological order, which seemingly was not the case, versus the doctor determining the questions); the referral to a psychiatrist shortly after the precipitating incident (mid 1998 against late 2000).
·An absence of any service related written material depicting the seriousness of the Avalon incident as regards either the plane, pilots and/or passengers. Further, the absence of any service or other medical record noting any effect of the incident until 2002 when Mr Jenkins raised the issue with Dr Altman.
·The significance of the Avalon incident in 1977 appears to have assumed an importance in Mr Jenkins’ recollections from 2002 onwards, this being inconsistent with and not reflected in documentation or recorded statements attributed to Mr Jenkins prior to that time.
·The opinion of a psychiatrist is much dependent as to diagnosis and significance of a particular event/incident on the accuracy and completeness of material provided. In this matter it is noted that Dr Dinnen, for whatever reason, was provided with neither the complete history of incidents experienced by Mr Jenkins during service, nor an accurate history of Mr Jenkins’ flying history, post the Avalon landing.
Issue of diagnosis:
36. In addressing the issue of diagnosis, we acknowledge the symptomology currently experienced by Mr Jenkins, as well as the various symptomatologies described by him during his service career. We observe that Mr Jenkins remains medicated on a high dose of Lovan for depression. We note his service medical records, which apart from an entry dated 12 June 1984 when he was prescribed Serepax for sleep difficulties arising from family problems (R10), are silent on issues or concerns about Mr Jenkins’ mental health.
37. We note the opinion of Dr Helme, consultant psychiatrist, in his reports dated 23 March 2007 (R15) and 27 February 2001 (T5). Dr Helme details Mr Jenkins description of the 1983 Garden Island incident involving the charging and gaoling of the sailor, and records Mr Jenkins as being troubled by memories of this event over many years and, that when the ex-sailor walked into his shop recently it caused Mr Jenkins intense distress. Dr Helme also records the particular night landing incident in 1970 referred to in his oral evidence. It is evident that Dr Helme did not consider that Mr Jenkins was suffering from post traumatic stress disorder, although he did notice some signs of depression associated with planning for his family’s future.
38. We note that such a history is consistent with that noted by Dr Allen in his clinical records dated 18 August 2000, as regards the Garden Island incident, where he noted a sailor turning up in the newsagency about a year earlier, and that since then Mr Jenkins had felt irritable, depressed, anxious, stressed, and that he said that he did not dwell on or talk to others about the Navy and was having difficulty sleeping (R19).
39. We are mindful that the two reports of the consultation with Dr Helme are somewhat truncated and that Dr Helme has no memory of the consultation. We form no opinion as to how he informed Mr Jenkins of the outcome of the consultation. Further, we draw no inference from what was suggested as to how such an outcome was imparted.
40. We note the report of Dr Altman, consultant psychiatrist, of December 2001 (T6). We observe the history recorded in relation to the incidents experienced by Mr Jenkins while in the Navy to include, the Lexington incident in 1972 and the Garden Island incident in 1983. As well as the 1969 incident (aircraft nearly over the side) and the 1970 incident (operational night landing). In his report, Dr Altman detailed that these incidents caused Mr Jenkins to experience the following symptoms:
·“I get angry”;
·“I get short-tempered – especially with my family”;
·“I do not sleep well”;
·“I do not rest well”;
·“I go out and drink”;
·“My memory is deteriorating”;
·“I have withdrawn from a lot of community activities”;
·Suffers from nightmares – three to four times a week;
·Has recurrent intrusive distressing thoughts about these incidents a couple of times a day;
·Suffers from flashbacks;
·Avoids thoughts associated with the abovementioned incidents;
·Becomes stressed on exposure to some reminders of the above incidents;
·He is much more a loner;
·Feels detached from others;
·Concentration is poor; and
·Exaggerated startle reaction and generally hypervigilant.
41. We also note that Dr Altman considered Mr Jenkins exhibited significant depressive symptoms indicative of a major depression, namely low mood, sleep disturbances, diminished energy, low libido, impaired concentration, low concentration and confidence, and making big issues out of relatively minor issues, together with suicidal thoughts but no suicidal ideation. We further note Dr Altman as describing Mr Jenkins’ symptoms after the Lexington incident in 1972 to include drinking alcohol four times a week, with approximately 10 beers on each occasion. In summary opinion, Dr Altman concluded that Mr Jenkins suffered from PTSD with an associated major depression and alcohol dependence as a consequence of the nominated service incidents.
42. In a report dated 11 March 2002 (T7), Dr Altman confirmed that the main incident which caused Mr Jenkins’ PTSD was the Lexington incident in mid 1972. Dr Altman then considered a further incident in 1977 (the Avalon incident) when Mr Jenkins was exposed to a life-threatening stressor. In relation to that event Dr Altman reported Mr Jenkins as stating “I thought that was the end”. “I was terrified”. “I felt shocked and humiliated and a total loss of confidence”. Dr Altman also noted that as a consequence, Mr Jenkins stopped flying and experienced increased irritability. Further, that Mr Jenkins started drinking and dreaming more, that his sleeplessness became worse and that he volunteered to have a ground job and not fly. Dr Altman also noted that Mr Jenkins left the job shortly thereafter, has never flown as a pilot since and won’t discuss this incident with anyone – Dr Altman, being the only one he had told and that he would rather not relive the experience.
43. A careful examination of Dr Altman’s clinical notes reveals that Mr Jenkins saw him for five consultations prior to writing the letter of 7 December 2001 (T6). Further, the notes record that Dr Altman received a letter from a Vietnam Veterans’ Advocate, dated 4 March 2002, stating that the Lexington incident occurred outside of Mr Jenkins’ period of eligible service and further provided some details of the Avalon incident, Mr Jenkins having had some discussion on that issue with the Advocate. The clinical notes record the details of the consultation regarding the Avalon incident on 8 March 2002. Subsequent letters dated 26 October 2004 and 15 September 2005 to Dr Allen, contained within the clinical records, confirm Dr Altman’s earlier opinion that Mr Jenkins’ PTSD with an associated major depression first occurred in 1972, with the life-threatening stressor in 1977 aggravating the condition. Dr Altman considered that a diagnosis of alcohol dependence was no longer warranted, as Mr Jenkins had significantly reduced his alcohol intake.
44. In a report dated 24 February 2005 (T15), Dr Koller, consultant psychiatrist, agreed with Dr Altman’s assessment and conclusions, having read Dr Altman’s reports of 7 December 2001 and 11 March 2002, as well as examining Mr Jenkins on 22 February 2005. Dr Koller believed that the chief incident was the 1972 Lexington incident, with the 1977 Avalon incident leading to an intensification of PTSD symptoms.
45. In a report dated 4 December 2006 (A6), Dr Dinnen detailed a history of Mr Jenkins experiencing a flashback when the light plane in which he was travelling to a reunion was landing at Nowra in 1998. The flashback brought Mr Jenkins back to the landing at Avalon in 1977. Dr Dinnen recorded Mr Jenkins as experiencing a sense of panic, with the reliving experience going on for days and resulted in him keeping things to himself, while consuming 10 beers each day of the weekend. Dr Dinnen recorded details of the Avalon incident in 1977, after which Mr Jenkins stated he had never again flown in the cockpit of an aeroplane and did not fly in another plane after that.
46. Dr Dinnen further detailed that Mr Jenkins stated that about two months later he discussed the episode with his doctor, that he was still drinking heavily (six to 10 beers a day), that he had great anger, was hard to live with and very easily irritated. Dr Dinnen recorded Mr Jenkins as stating that his doctor said he had PTSD and that he later saw Dr Helme, psychiatrist. Dr Dinnen described Mr Jenkins’ current symptoms as a feeling of depression, with feelings of sadness present most of the day, every day, associated with irritability, impatience, loss of his sense of humour, general fatigue, memory loss, and thoughts of death. Dr Dinnen noted decreased level of alcohol intake since treatment started with Dr Altman.
47. Dr Dinnen noted the traumatic experiences to include the Lexington incident in 1972, the Skyhawk incident in 1973, the Avalon landing in 1977, the incident at Garden Island in 1983 and the night landing on the Melbourne in 1970, as well as noting other traumatic experiences detailed in Dr Altman’s reports. After a review of much of the clinical evidence provided by Dr Roberts, Dr Dinnen suggested there was sufficient evidence within Dr Robert’s report to justify the diagnosis of chronic PTSD.
48. In a supplementary report, dated 14 December 2006 (A8), Dr Dinnen concluded that Mr Jenkins suffers from PTSD as a result of his exposure to stressful events during his service, with his particular experience at Avalon leading to ongoing anxiety about flying since that time. Further, Dr Dinnen believed the clinical onset for PTSD was in 1998, at the time of the Nowra incident, attributing the condition to the dangerous landing at Avalon in 1977.
49. In oral evidence, Dr Dinnen confirmed that the clinical onset of Mr Jenkins’ PTSD was in 1998, when he reported a range of symptoms consistent with the diagnosis of that illness. Dr Dinnen attributed the condition to the 1977 Avalon incident as the central traumatic event, with other experiences having an additive effect. Dr Dinnen agreed that the Lexington incident in 1972, and other near misses on the Melbourne in 1969 and 1970, were stressful experiences which must be added to the overall situation. Dr Dinnen suggested that the Avalon incident was the more important and more significant to a flyer as it was a more powerful emotional stress, although admitting it was difficult to rate such events. Dr Dinnen stressed the importance of the 1998 landing at Nowra as going through the same events as in the 1977 Avalon landing, with a range of symptoms resulting as giving a “ring of truth that the ’77 incident was indeed the critical one”, and the significant trigger for the illness.
50. Dr Dinnen believed the reason that Mr Jenkins did not raise the 1977 Avalon incident with Dr Altman until March 2002 was due to repression of such memories, and was not surprised that it took a while for the memories to surface. Dr Dinnen did not discount the fact that such matters become more prominent because of the occupational nature of the claims in recent years, but this issue did not change his view.
51. In examining the basis of his opinion that the 1998 incident was pivotal in manifesting the symptoms of PTSD, Dr Dinnen pointed to the onset of symptoms thereafter, the symptoms being reported to the treating general practitioner some two months later, with the general practitioner suggesting he has PTSD. When confronted with evidence from Dr Allen’s notes that Mr Jenkins did not see him until August 2000, Dr Dinnen admitted that it changed the story, but not the picture. When further confronted with the history that the issue of the Nowra event was not mentioned to the treating general practitioner at that time, Dr Dinnen still believed the Nowra incident to be the central event and that he would need to talk such issues through with Mr Jenkins.
52. In response to further questions from the Tribunal, Dr Dinnen concluded that Mr Jenkins’ response to the Lexington incident in 1972 was a PTSD acute stress reaction, in short, “I think that [the] Lexington incident probably triggered PTSD, with subsequent events adding to it, and the Avalon incident having significant weight. In so stating, Dr Dinnen acknowledged that the Avalon incident would have more significance because of termination of a piloting career and particularly because of humiliation arising out of such loss.
53. Dr Dinnen considered that Mr Jenkins experienced a severe stressor when the plane ran off the runway at Avalon in 1977, with Mr Jenkins describing his response as being frightened and terrified. Dr Dinnen placed emphasis on the account given to him by Mr Jenkins that “he didn’t fly again… He didn’t want to fly again after that”.
54. Dr Dinnen was particular in defining the terms acute stress reaction and PTSD, which are distinguished by time, with the acute stress reaction lasting for a month, and if it goes on for more than a month then clinically it is PTSD. Further, Dr Dinnen was particular in stating that his opinion is reliant upon the facts as detailed to him by Mr Jenkins. Further, Dr Dinnen was particular in stating that Mr Jenkins’ major depression was part of his PTSD.
55. In a report dated 29 May 2006 (R6), Dr Roberts, consultant psychiatrist, detailed Mr Jenkins’ presenting his complaints as depression, had little patience and becomes angry very easily, forgetful, gets stressed as a consequence of being wrapped up in detail, annoyance with customers, and experiencing dreams in which the theme was doom and gloom.
56. Dr Roberts detailed Mr Jenkins as describing his problems commencing when he experienced a flashback to an earlier incident, involving a landing at Avalon in 1977, while as a passenger in the cockpit of a small plane which was preparing to land at Nowra in 1998. Following the incident Dr Roberts recorded Mr Jenkins’ symptoms as including:
·“when he was in the shop he would shake, that he would feel terrified, that he would have hot flushes”;
·experienced feelings of shame and humiliation arising from the original incident; and
·“became angry, that his alcohol ingestion increased to six to eight schooners per night”.
57. Dr Roberts recorded Mr Jenkins as stating he attended Dr Allen, a general practitioner, who diagnosed him with PTSD, that the comment was made that this should be investigated, but he didn’t know whom to see. Mr Jenkins is recorded as stating he went to the Vietnam Veterans’ Association and subsequently attended upon Dr Helme a psychiatrist who, after 10 minutes, said of his complaints “bullshit”.
58. Dr Roberts recorded Mr Jenkins as stating that he had always been a big drinker throughout his naval career. Dr Roberts noted that while there was an assertion of cognitive impairment, none was observed at interview. Further, Dr Roberts concluded that Mr Jenkins’ symptom complex is not consistent with anxiety of significant degree and no reactive state, be it PTSD or anything else, can be diagnosed.
59. Dr Roberts considered that Mr Jenkins is suffering from a depressive disorder, but on the basis of presentation is substantially in remission. Dr Roberts expressed difficulty in correlating his assessed state at interview, in April 2006, with his claim for invalidity and that he can only work one hour a day. Dr Roberts noted that Mr Jenkins did not mention the Lexington incident to him, nor did he mention the Garden Island circumstance in 1983 when asked to describe issues.
60. In a subsequent report, dated 18 July 2006 (R7), Dr Roberts opined in relation to the Avalon incident in 1977:
I find it difficult to envisage, although accepting that the incident may well have been frightening, that such constitutes a substantial psycho-social stress…
Further, Dr Roberts stated that the Avalon incident did not constitute a significant stressor, that it was not a significant event and that there was no evidence of a depressive disorder within one year of the incident.
61. In oral evidence, Dr Roberts confirmed his diagnostic approach as involving the need to demonstrate physiological signs, and that symptoms of an anxiety disorder are present prior to consideration of specific symptomatology of a reactive state, and hence his assessment to determine whether any physiological concomitants of anxiety can be elucidated. Dr Roberts considered that Mr Jenkins’ depressive symptoms commenced after the Nowra incident in 1998. Further, Dr Roberts did not believe that the Avalon incident in 1977 was a situation in which the criteria for generating PTSD were ever there, as there were no injuries, no plane damage and no enquiry – in short, the event was not a significant stressor. Further, Dr Roberts believed that if it was considered that the Avalon incident was a significant stressor, he would expect such to be disclosed to attending psychiatrists with people giving an account of what was significant to them. Dr Roberts was particular in suggesting that Dr Dinnen’s concept of repression in such circumstances is not consistent with main-stream psychiatry in 2008.
62. Dr Roberts was referred to his involvement in an earlier matter, where his views that there must exist elements of heightened anxiety before a diagnosis of PTSD could be considered, were considered and rejected by the Court. Dr Roberts’ response was that the Supreme Court is not the ultimate arbiter in psychiatry and continued to maintain his expressed opinion, and further expressed the view that two events of significance do not necessarily produce a cumulative function.
63. Following an analysis of the psychiatric and other opinions rendered in this matter, we are satisfied that the following inconsistencies and anomalies in the evidence before us exist:
·It is difficult to understand Mr Jenkins’ alcohol intake during the totality of his service and thereafter, with varying tranches of evidence suggesting he was essentially a social drinker (two to three beers a day), periodic episodes of heavy drinking (post the Lexington incident and the Nowra incident in 1998), while other evidence suggests a heavy and continual alcohol intake over time and over most of his service career. We note that his wife is silent in her statements on the issue of alcohol, while one statement from a son refers to Mr Jenkins’ voice becoming louder after several drinks (T16).
·A careful examination of Dr Allen’s clinical notes detail that he has made no notes indicating that he had diagnosed Mr Jenkins’ with PTSD. Further, there is no clinical note of any discussion with Mr Jenkins as to experiences in the service, apart from the Garden Island episode which was reported, in our view, in some detail on 18 November 2000. In particular, there is no mention of the Avalon incident in 1977 or the Nowra incident in 1998.
·A careful examination of Dr Altman’s clinical notes show that the Avalon incident was not recorded until after he received a letter from the Vietnam Veterans’ Association in March 2002, despite there being extensive notes of five previous consultations. Further, we note that there is no record of the Nowra incident in either Dr Altman’s clinical notes and/or in his reports to Dr Allen of 26 October 2004 and 15 September 2005.
·We note Mr Jenkins’ various explanations as to why the Avalon incident was not raised with Dr Altman until March 2002 and, as earlier observed, found such explanations inconsistent, as indeed was the notation made by Dr Altman that Mr Jenkins did not wish to discuss the issue with anyone, when clearly he had raised and discussed it with the Advocate at the Vietnam Veterans’ Association.
·We note the report of Dr Koller of 24 February 2005, and it is evident from that report that Mr Jenkins made no mention of the Nowra incident.
·We observe that the first documented evidence of the Nowra incident is by the Veterans’ Review Board on 8 November 2005. Thereafter, the Nowra incident appears in the reports of Dr Burns (10 June 2006), Dr Chase (24 June 2006) and the reports of Drs Dinnen and Roberts.
·As regards flying after the Avalon incident, the evidence from Mr Jenkins is that he did captain and fly the aircraft back to Nowra in November 1977 and flew on four or five occasions thereafter as a co-pilot in the remaining few months of 1977, prior to being posted to a non-flying job. This is clearly inconsistent with what is recorded in Dr Altman’s report of 11 March 2002 and in Dr Dinnen’s report of 4 December 2006.
·Further, as regarding the issue of his flying status, it is evident that there is inconsistency in what Mr Jenkins is documented as telling Dr Dinnen, that he did not want to fly again and didn’t fly again after that, together with consideration of the issue of a prior medical board in 1977 and his eventual non-flying status and posting to a non-flying position, and of course his later pursuit of and being granted flying status again in 1983.
·We also conclude that there has been continued inaccuracy in Mr Jenkins repeating of the chronology of events to the later psychiatrists, in that Mr Jenkins refers to consulting his doctor a few months after the Nowra incident in 1998, being told he has PTSD, and variably left to find a psychiatrist for further assessment which he did within a short time. The relevant documentation (Dr Allen’s clinical notes) nominates 8 August 2000 as the date of attendance, details the 1983 Garden Island incident, with a further note that Mr Jenkins was seeing Dr Helme on 6 November 2000 for PTSD.
64. It is for those reasons we conclude that Mr Jenkins has become less than a reliable historian over the last eight years. While much argument could be entered into as to the cause of the unreliability a single issue remains, namely, that each of the psychiatrists have been provided with statements by Mr Jenkins which are either in error, represent his reflection of events at a particular time, or indeed are inconsistent with other material he has provided at other times or documented by assessing psychiatrists.
65. In addressing the issue of diagnosis, we are satisfied that Mr Jenkins suffers from post traumatic stress disorder with major depression. In so finding, we are mindful of the difficulties of less than consistent evidence in some aspects of this matter which we have defined. We conclude that there is documented evidence that Mr Jenkins was exposed to a traumatic event on the USS Lexington in July 1972. Further, we note his response to that event and the symptoms he experienced for some months and years thereafter. We observe the list of current symptoms experienced by Mr Jenkins and recorded in Dr Altman’s report of 7 December 2001, all the symptoms recorded being consistent with the diagnosis as nominated.
66. We note that the diagnosis as constructed is supported by the opinions of Drs Altman, Koller and Dinnen, with the former being of the opinion that the Lexington incident in July 1972 was the foundation event, with the Avalon incident in 1977 aggravating his pre-existing post traumatic disorder. On the other hand Dr Dinnen, with later material to consider (the Nowra incident), placed greater weight on the Avalon incident in November 1977 as the foundation event, although on further consideration concluded that all the nominated events (particularly the Lexington and Avalon incidents) were cumulative, with the disorder having its clinical onset in 1998 as a consequence of the Nowra incident.
67. We observe that Dr Helme in his report of 5 December 2000 alluded to issues of depression and suggested to Dr Allen that a trial of anti-depressant therapy could be considered. Further, we note the opinion of Dr Roberts that Mr Jenkins was suffering from major depression in substantial remission. Firstly, we do not understand the nature of the diagnosis, in that it is difficult to appreciate how a disease can be considered to be in substantial remission in a therapeutic environment where significant doses of an anti-depressant are being administered. Secondly, we express a concern at the diagnostic approach adopted by Dr Roberts, a concern clearly expressed by Dr Dinnen. It would appear to us that Dr Roberts’ approach is very much a personal one, and in our view one not necessarily mandated by DSM IV TR. It is for these reasons that we prefer the opinions of Drs Altman, Keller and Dinnen, while in turn noting the different emphasis Dr Dinnen places on the various incidents.
Is the diagnosed condition defence caused?
68. In addressing the issue of the relationship of the disease (PTSD with major depression) to service, we direct our attention to Statement of Principles (SoP) Instrument No. 6 of 2008 concerning post traumatic stress disorder. We observe paragraph 3 of that Instrument and we are satisfied on the balance of probabilities that Mr Jenkins was exposed to a traumatic event, namely the Lexington incident in July 1972, in which he was confronted with an event that involved death to another and that his response was one of shock, helplessness and disbelief. Further, we observe re-experience of the traumatic event by both recollections and flashbacks, and we note the range of symptoms nominated in Dr Altman’s report of 7 December 2001, all of which we consider on the balance of probabilities satisfy the diagnostic criteria listed in paragraph 3(b) of Instrument No. 6 of 2008.
69. In addressing the service causation element we observe factor 6(b), namely experiencing a category 1B stressor before the clinical onset of PTSD, with a category 1B stressor being defined in paragraph 9 as:
“a category 1B stressor” means one of the following severe traumatic events:
(a) being an eye witness to a person being killed or critically injured;
…
70. In this matter, we are satisfied that Mr Jenkins did experience a category 1B stressor as defined as a consequence of the Lexington incident in July 1972, and did suffer a stress reaction for a period much longer than a month as a consequence. In such circumstances, as described by Dr Dinnen, a stress reaction lasting longer than a month is by definition post traumatic stress disorder.
71. Unfortunately for Mr Jenkins this event falls outside of eligible defence service, with the consequence that the service related disease is not covered by the Veterans’ Entitlements Act 1986. Any redress in relation to this incident and its consequences vests in a claim for compensation pursuant to the relevant compensation act.
72. In addressing the Avalon incident in 1977 under the same SoP, we acknowledge our earlier finding that the 1972 incident on the Lexington, on the balance of probabilities, had been instrumental in establishing a service related diagnosis of PTSD. We note factor 6(a) of Instrument No. 6 of 2008 which provides:
…experiencing a category 1A stressor before the clinical worsening of post traumatic stress disorder…
Further, we note the definition of a category 1A stressor contained within paragraph 9 of the same Instrument to include:
(a) experiencing a life-threatening event;
73. In addressing the Avalon incident, as the landing unfolded, it was a life-threatening circumstance but, by the time the landing had concluded it was clearly a mishap that involved neither physical injury to a person, damage to the plane, nor was there an enquiry into the matter. The co-pilot gave evidence as to the events of the day, the competent handling of the incident by Mr Jenkins and the tremendous relief experienced when the plane came to a halt, bogged in soft ground. Mr Jenkins described his response to the event as “narrowly avoiding death”, my life passed before my eyes, severe trembling and difficulty in controlling his actions, together with a total loss of confidence.
74. In such circumstances we recognise that there is a fundamental difference between the start, the progress through and the end of an event. In this incident, at the start of the landing, a decision was made by Mr Jenkins that it was appropriate to land the plane in inclement weather. During the landing, control of the plane was lost, with the plane running off the airstrip at an angle. In the end the plane ended up bogged in soft ground with no damage and/or injury to persons.
75. In such an analysis we are satisfied that loss of control of a plane while landing constitutes a life-threatening event. While the outcome in this incident was favourable, such an outcome cannot be allowed to detract from the circumstances facing the plane captain when control of the plane is lost. At that point in time the pilot, while attempting to regain control, must by definition be uncertain as to outcome.
76. In addressing the issue of clinical worsening, we are mindful that such a condition can only be determined where there is a collation of clinical signs and symptoms present that permit a clinician to conclude that the underlying condition has been made worse on a permanent basis. In this matter there is much evidence to suggest, and we so find on the balance of probabilities, that Mr Jenkins’ PTSD became clinically worse in 1998. In so finding we rely upon the evidence of Mr Jenkins, his wife and the opinions of Drs Helme, Altman, Koller, Dinnen, Roberts, Burns and Chase.
77. The difficulty that arises in this matter is whether the clinical worsening is service related, or indeed the natural progression of and/or clinical worsening of his diagnosed PTSD from events unrelated to his defence service. Exploration of the many facets of this difficulty is undertaken in the ensuing paragraphs.
78. Mr Jenkins identified an event in 1998 when flying with a friend to attend a service reunion at Nowra, he experienced a flashback of the 1977 Avalon incident as the plane prepared to land. We have already concluded that the Avalon incident in 1977 involved Mr Jenkins in experiencing a severe traumatic event, namely experiencing a life-threatening event.
79. In advancing our consideration we are faced with the following issues:
·In the intervening years between 1977 and 1998 Mr Jenkins remained in the service until 1988 and thereafter successfully owned and operated a newsagency at Walcha. More importantly, in the clinical records both from the service and his treating local doctor, there is an absence of record suggesting any de-compensation in Mr Jenkins’ mental health status, apart from one episode in the Navy when he was treated for sleeping difficulties in 1984 (family reasons) and for stress by Dr Allen in 1992 at a time of changing premises. We also note that during the remainder of his service career Mr Jenkins regained his flying status in 1983 and, as with all the service medical board records, there is an absence of any concern about Mr Jenkins’ mental health status.
·In assessing Mr Jenkins as an unreliable historian, we nominated a number of issues when we concluded that he was less than accurate in his statements either to the Tribunal and/or the various doctors involved in this matter. Such issues involved his use of alcohol both during service and after service, flying after the Avalon incident, flying aversion and flying status post 1977, chronology of events post 1998 particularly as regards time intervals. Such matters have been discussed and findings made earlier in this decision.
·A further issue is a concern that material relating to events has been constructed in relation to a need to further progress his claim. This is mainly an issue in relation to the Avalon incident and the Nowra incident. Both issues have been previously discussed, with inconsistencies being noted in Mr Jenkins’ responses and his responses in relation to written records. We also note that both the Avalon incident and the Nowra incident did occur and, in so doing, lay a factual foundation upon which Mr Jenkins progressed his claim.
·The remaining issue is one which is a consequence of what has been canvassed, namely the various psychiatrists involved in this matter have, for whatever reason, not been provided with a consistent input of facts. Such may arise by their approach to history taking, material provided by Mr Jenkins in response to their questions, review of other material and time available to devote to consideration of the matter, while leaving aside any preference they may have as to clinical assessment.
80. We have weighed very carefully the material we have outlined. We are mindful that there is clinical acceptance of delayed onset PTSD. We have no evidence before us that such clinical acceptance can be extrapolated to a delayed onset of clinical worsening. We have concluded that Mr Jenkins’ PTSD with major depression was a consequence of his early career experience on the Lexington. We accept that there is a possibility that Mr Jenkins’ clinical worsening of his condition may have had its origins in the Avalon incident, but we are unable to progress that possibility to more than a possibility for the reasons which will be detailed in summary form.
81. In summary conclusion, we are not satisfied on the balance of probabilities that Mr Jenkins’ clinical worsening of his PTSD was related to the Avalon incident in 1977. The reasons for such a finding arise primarily with our earlier finding that Mr Jenkins was not considered to be a reliable historian particularly in relation to a number of factors including: the provision by him of misinformation in relation to his flying activities post the Avalon incident; the inconsistency in his answers as to why the Avalon incident was not related to Dr Altman prior to March 2002; the inconsistencies as to his alcohol consumption both during service and post service; an absence of correlation between clinical medical records and Mr Jenkins’ statements to various psychiatrists concerning both time chronology and clinical issue post the Nowra incident; together with the absence of a clear understanding as to when or if the Nowra incident had been discussed with Dr Altman.
82. Further, we express difficulty with the concept of a clinical worsening some 21 years after experiencing a flying related stressor. Particularly where, within the intervening years, there is no evidence of any significant mental health symptomatology contained in the clinical documentation of Mr Jenkins’ health status, and that during that period he actively sought and did achieve a return of his flying status in 1983. We also note that after discharge, in 1988, Mr Jenkins moved to own and operate successfully a newsagency over many years in a new environment. Further we accept, as Dr Dinnen did, that a psychiatric opinion is much dependant on the information provided by an individual, and where there is inconsistency the matter has to be further examined. It is for this reason that the psychiatric opinions given in this matter must be carefully considered, with any opinion weighed in the light of inconsistent and or significant evidence, which has been changed over time and for which no reasonable explanation is forthcoming. In such circumstances, we continue to express grave concerns as to the reliability of clinical psychiatric opinions rendered in this matter, and particularly where it is evident that the psychiatrist has expressed an opinion, without the totality of the relevant material being available, either at the time of writing his opinion or at the time of presenting oral evidence. In such circumstances, while we are able to postulate the possible relationship of an increase in clinical symptoms albeit to the point of clinical worsening, with an incident in Mr Jenkins’ defence service, we are not satisfied that there is evidence before us that permit such a finding on the balance of probabilities.
83. As Mr Jenkins’ claim was made prior to promulgation of the current SoP No. 6 of 2008, we considered whether the earlier SoP, namely Instrument No. 4 of 1999 as amended by Instrument No. 55 of 1999 concerning post traumatic stress disorder, was of benefit to the Applicant in determining his claim. While the language is somewhat different, the fundamental issues are at one with the current SoP, with the current SoP being more expansive in terms of defining the stressor with more particularity. We conclude that the earlier SoP does not assist the Applicant in furthering his claim.
84. For the reasons nominated, that part of the decision relating to entitlement is affirmed. Consultation between the parties is to occur as regards the issue of assessment with a joint submission to be lodged with the Tribunal within 30 days, unless there be disagreement as to how to further progress that issue.
I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member and Rear Admiral A R Horton, Member
Signed: .........................................................................
AssociateDates of Hearing 11 & 12 October 2007, 1 February 2008
Date of Decision 5 May 2008
Counsel for the Applicant Mr N Dawson
Solicitor for the Applicant Mr R Whyburn, Maurice Blackburn Cashman Lawyers
Counsel for the Respondent Mr R Douglass
Solicitor for the Respondent Ms J McCullough, Department of Veterans’
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