KENT and REPATRIATION COMMISSION
[2011] AATA 413
•17 June 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 413
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2790
VETERANS' AFFAIRS DIVISION ) Re ADAM KENT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member
Dr Kerry Breen, MemberDate17 June 2011
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
.................[signed]........................
Senior Member
VETERANS’ AFFAIRS – operational service in East Timor and Iraq – claim for Post Traumatic Stress Disorder (PTSD) – denied and affirmed by the Veterans’ Review Board – whether applicant suffered PTSD or dysthymic disorder – applicant does not suffer an injury – ilnness or disease capable of diagnosis – decision under review affirmed.
Mines v Repatriation Commission [2004] 40 AAR 238
REASONS FOR DECISION
17 June 2011 Mr John Handley, Senior Member
Dr Kerry Breen, Member1.Mr Kent (the applicant) was a member of the Australian Army between 25 January 2001 and 26 May 2006. He was engaged in operational service in East Timor and in Iraq. He made a claim for service related Post Traumatic Stress Disorder (PSTD). The Repatriation Commission (the respondent) denied his claim. On 8 April 2009, the Veterans’ Review Board (VRB) affirmed the decision made by the respondent. The applicant has applied for a review of that decision.
2.The applicant was 26 years of age at enlistment. He had previously worked as a panel beater – both as an apprentice and in self-employment in Dunkeld. He had also worked as a jackaroo.
3.Following enlistment, the applicant trained at both Kapooka and in Townsville. He also received specialist training in logistics, which qualified him to load and unload cargo from ships and trucks and to drive trucks delivering cargo.
EAST TIMOR
4.The service records indicate the applicant served during Operation Tanager between 6 December 2001 and 16 March 2002 and during Operation Citadel between 20 May 2002 and 4 June 2002.
5.The applicant recalled that he was entitled to 12 days leave during his East Timor service. He was able to return to Victoria to attend his brother’s 30th birthday. He recalled that he left on 16 March 2002 but returned on or about 28 March 2002. He was unable to explain the gap between the two periods of service in East Timor of about two months. The service records (T-documents, p. 8) indicate that both periods of service were operational service and it is conceivable that between 16 March 2002 and 20 May 2002 there was a period, which was regarded as defence service only.
6.Nonetheless, the applicant said that whilst in East Timor he was not exposed to any difficulties, he was not exposed to any violence, nor was he subject to any disputation or hostility (Transcript, p. 13). His work involved the loading and unloading of ships and trucks and delivering cargo throughout East Timor.
7.When service in East Timor ended, he returned to Townsville. He was permitted to have leave and he returned to Dunkeld. He married in July 2002. He then returned to Townsville and was later deployed to Iraq.
IRAQ
8.The applicant served in Iraq as a terminal operator and as a driver for approximately six continuous months between 22 May 2003 and 22 July 2003 during Operation Falconer and between 23 July 2003 and 23 November 2003 during Operation Catalyst.
9.After leaving Australia and before entering Baghdad, the applicant and some other colleagues received five days of briefings in Qatar.
10.Before he left Australia, a senior terminal operator told the applicant that he would be going into the unknown (Transcript, p. 13). During the briefings in Qatar, he was told that he might face some hostility as opposed to being in East Timor (Transcript, p. 14).
11.In Baghdad, the applicant initially was based at Camp Victory, which was located within the grounds of the Presidential Palace and was approximately five kilometres from the Baghdad airport. The accommodation was on stretchers in a small building and was known amongst the Australian troops as either Australia House or Oz Island.
12.The applicant and others would travel daily from Camp Victory to the Baghdad airport to unload stores from incoming aircraft, sort it and then deliver it by truck.
13.When travelling between Camp Victory and the airport, the applicant’s vehicle did not receive a security escort. However, when travelling between Camp Victory and the Baghdad CBD or between the airport and Baghdad CBD he was under ASLAV escort (Australian Light Armoured Vehicles) at both front and rear. The applicant said he was anxious whilst driving because local traffic was always heavy; he was at risk of driving over improvised explosive devices (IEDs) and was specifically under orders to let no other person or vehicle between his vehicle and the vehicles that were escorting him. Specifically, he said:
…the rules of engagement or our orders were always we had – no matter what happened we had to keep going. And quite often there would be lots of little kids running out. You’d have a lot of near misses. And we were told if you hit a kid it doesn’t matter, you just had to keep going (Transcript, p. 15).
14.The applicant understood that the risk of stopping the vehicle would expose him to an attack. He had been told of an occasion when an American vehicle had broken down; it had therefore stopped and had come under fire. He was also told that Australians were generally regarded as good Samaritans and if an Australian vehicle stopped because of accident or for other reasons, the persons in the vehicle would then be a sitting duck (Transcript, p. 15).
15.After approximately three months, the applicant was transferred to accommodation at the Baghdad airport. He said he and others occupied tents, which were located approximately 500 metres from the warehouse where goods were stored and vehicles were parked. An administration area made up of demountable buildings was located approximately 30 to 40 metres from the warehouse. The applicant continued to be responsible for loading and unloading incoming aircraft and delivering goods to both the Baghdad CBD or Camp Victory, at least once every fortnight and sometimes once per week.
16.Whilst he was located at Camp Victory and also at the airport, the applicant said that he and others received daily intelligence briefings of attacks during the previous 24 hours. The type of reports described attacks by snipers or by IEDs. On some occasions, intelligence briefings comprised information concerning proposed attacks on soldiers from differing countries. The applicant recalled there was an occasion where a report had been received that opposition forces targeted Italian soldiers and two days later a report was received that approximately 20 Italian soldiers had been killed. At or about that time, a report was also received that American troops were about to counter attack and the applicant heard artillery fire that night.
17.When the applicant was based at the airport, he said the hostilities around him were increasing. During Ramadan, in November, he estimated attacks doubled from about 20 per day to approximately 40 per day. The attacks, he said, were from mortar, with three or four specific mortar attacks on the airport within 500 metres of where he was accommodated and where he had been working. The attacks occurred at night. The applicant said that his Flak jacket and Kevlar helmet and other protective equipment were close at hand. When driving vehicles, the equipment was worn and also worn when walking between the warehouse and the accommodation area. Initially, the protective equipment was kept in the warehouse area, which prompted a memory from the applicant of an occasion, one evening, when he and others were in the administration area. A communication had been received from American personnel that the perimeter fencing had been breached at or near the POL (petrol, oil, lubricant) point. Because of the risk of a major explosion, the applicant was ordered to return to the warehouse to collect his jacket and helmet. When returning to the administration area he heard a noise at or near the perimeter fence. He said that he froze (Transcript, p. 18) and he feared for [his] life (Transcript, p. 20). Whilst in hindsight the applicant thought that it was probably a cat or something he said I was pretty high anxiety and I froze and I thought I was going to die (Transcript, p. 20).
18.The applicant completed his service in Iraq on 23 November 2003 and returned to Townsville. He undertook decompression (debriefing) for approximately one week and then was permitted to have six weeks leave. He returned to Dunkeld. He returned to Townsville and approximately 12 months later he was deployed to Sumatra.
SUMATRA
19.The applicant was engaged in an Australian relief effort providing humanitarian aid following devastation by a tsunami. He was again engaged in logistic type operations, specifically the receipt, sorting and delivery of medical supplies. He was not under threat.
20.He served in Sumatra between 7 January 2005 and 28 March 2005.
21.The applicant returned to Townsville and decided to resign from the Army, effective from 26 May 2006. He then enlisted in the Army Reserve.
MEDICAL EVIDENCE
22.The T-documents contain a number of service medical records.
23.On 2 June 2002, two days before the expiry of service in East Timor the applicant received a psychology debrief which records that he presented with no issues of concern (T-documents, p. 64).
24.A post deployment health assessment completed on 9 September 2002, approximately three months after the service in East Timor expired, records the applicant as never suffering stress from his present lifestyle and almost no stress at all in the preceding two weeks (T-documents, p. 46-47). On 27 November 2002 the applicant underwent a psychological screening interview however, nothing is recorded in the section under the heading Additional Comments (T-documents, p. 63). The balance of the form contains references to the applicant’s rank and results (apparently) of an ADF Mental Health Screen. The results are recorded in numerals without explanation.
25.On 15 November 2003, eight days before service in Iraq ended the applicant underwent psychological screening (T-documents, p. 61). The comments recorded are:
X enjoyed his deployment. This is his second deployment in two years; his previous being to East Timor last year. X has been married for two years only, however the separation has been manageable, and both he and his wife are managing well.
No problems identified. Follow up at POPs only.
The Tribunal understands that POPs is the abbreviation of Post Operational Psychology screening.
26.On 12 February 2004 approximately two and a half months after returning from Iraq, a psychological screening assessment recorded initially very irritable upon RTA. Reports that he worked through this with his wife. No problems since (T-documents, p. 59). On 26 February 2004 – two weeks later, the applicant completed an Annual Health Assessment (T-documents, p. 38-39). He recorded that his present lifestyle seldom puts him under too much stress and has experienced relatively little stress during the preceding two weeks. Approximately four months later on 21 June 2004 (T-documents, p. 33-34) the applicant gave similar responses to questions concerning the frequency of stress.
27.On 25 March 2005, three days before the expiration of the applicant’s service in Sumatra a psychological screening records:
Member is a termite [terminal operator] deployed with 10FSB to BW, Medan and Sebang. He did have the opportunity to overnight in BA and so was able to gain an appreciation for the scale of devastation. He reported no exposure to PTEs however. Although member did recognise his contribution to the WHO aid effort his deployment was soured by what he perceived to be poor leadership at the SNCO level. This has caused him some concerns in terms of promotion [illegible] and he has consequently been considering discharge. However, he has undertaken to return to his home unit to discuss the issues with his SSM. Otherwise, no [illegible] concerns were raised and follow-up is not necessary at this time (T-documents, p. 57-58).
28.When asked to record the major positive experience of that deployment it is recorded helping the locals; forming strong relationships with co-workers. The major negative experience is recorded as working with incompetent people.
29.Approximately two months later on 29 July 2005 another psychological screening records:
X reported mixed feelings about his deployment. He said that most of the people were good + when he was busy he enjoyed it, however poor comms + man management detracted from the op. X came home to a new family, so he said that this has produced some small ups + downs for he + his wife. X said generally home life is good. X indicated that his social life is back to what it was before the deployment + that he is fit + healthy. X is considering discharging for the sake of his family life, so he has a lot on his mind + he is sometimes a bit irritable. X does not think that this has anything to do with his deployment experience, and generally he feels he is coping well (T-documents, p. 55-56).
30.After the applicant returned from Iraq and returned to Dunkeld for six weeks, he said he was all over the place and was unable unwind. He recalled that he was drinking large quantities of alcohol and stayed indoors watching television. He became unsociable, described himself as arrogant and argued with his wife (Transcript, p. 21). He eventually returned to the barracks in Townsville and thought that the Army routine helped. The applicant’s wife returned to Townsville with him and they occupied married quarters. Their first child was born in October 2004 and he commenced service in Sumatra on 7 January 2005.
31.The applicant acknowledged the psychological screening note of 15 November 2003, which recorded that he enjoyed his deployment and he and his wife were managing well. He said he was playing things down a bit and, having been the first out of his squadron of 100 soldiers to be selected to travel to Sumatra, he would have been embarrassed if colleagues knew he was struggling (Transcript, p. 23). The applicant said his absence from home during service in Sumatra impacted on his marriage, that he had only spent a few weeks with his newborn son before deployment and he ultimately decided that he should be discharged from the Army in an attempt to preserve his marriage.
32.In evidence, the applicant said that he was very concerned about whether his marriage would continue. It also appears that his wife was unsympathetic to his emotions. He elected to have psychological treatment in Townsville after he returned from Sumatra. He had preferred to have marriage counselling with his wife but she refused.
33.The applicant said that Sargent Munroe had approached him and asked what was wrong (Transcript, p. 70). Having explained to her that his marriage was at risk and her observation that his behaviour was bordering on being insubordinate (Transcript, p. 72), she recommended that he have private treatment.
34.The applicant arranged to see a psychologist in Townsville. He could not recall the name of that person but did recall he consulted on six occasions. Attempts by the applicant’s solicitors after the first day of hearing to locate those records were unsuccessful. It was thought that he may have attended a psychologist in the Defence Community Organisation which was funded by the Department of Defence and which provides assistance to service personnel and their families. A bundle of service records provided by the Department of Defence, which mainly comprised of records existing within the T-documents, did not contain the records of the psychologist. The history taken by the psychologist and whether a diagnosis was made is therefore not known.
35.The applicant and his family eventually returned to Dunkeld. He sought and obtained a referral by the Vietnam Veterans’ Counselling Service to Dr John Clarke, a consultant psychologist in Warrnambool, in November 2006. The applicant also sought treatment from doctors at the Hamilton Medical Group. Later, he also sought marriage counselling from Ms Petra Becker in Warrnambool, also a psychologist. The applicant first attended her with his wife, but she eventually declined and thereafter he saw Ms Becker alone.
36.The applicant consulted Dr Ridley, a psychiatrist, at the request of the respondent on 13 November 2007 in Warrnambool. He was also assessed by Dr Strauss, a psychiatrist, at the request of the respondent and by Dr Entwisle, also a psychiatrist, at the request of his solicitors.
37.In his report of 13 November 2007 (T-documents, p. 91), Dr Ridley diagnosed the applicant as suffering from PTSD as a direct consequence of his exposure to the distress he experienced in Baghdad as outlined above (T-documents, p. 94). He thought the onset of that condition was approximately 18 months previously however, he thought it was possible that the onset was earlier. In a supplementary report of 15 July 2008 (T-documents, p. XVII), in response to notification by the applicant’s advocate that the VRB had decided PTSD was not related to service, Dr Ridley reaffirmed his opinion that the applicant suffered PTSD. He was satisfied the applicant suffered a Category 1A stressor (because he experienced a life threatening event) and that Criterion A of the DSM-IV definition of PTSD was satisfied.
38.Dr Clarke wrote a report to Dr Blackwell of the Hamilton Medical Group on 21 May 2008 (Exhibit R2). He reported that he first treated the applicant in November 2006 and had obtained a history of service in East Timor, Iraq and Sumatra. He reported that the applicant experienced labile mood and obtained a history that his most pressing problem was in his marriage relationship to Karen. His therapy focused on anxiety and mood management. On presentation, the applicant had a variable mood, which he said was at its worst when he returned from Iraq. The applicant completed the Depression Anxiety and Stress Scales (DASS) on 21 May 2008. The results indicated he was suffering extreme depression and anxiety and severe stress. That result indicated to Dr Clarke a significant deterioration in the applicant’s clinical status since February 2008 (when, we assume, the DASS analysis had also been completed).
39.The Hamilton Medical Group clinical notes (Exhibit R2) record the applicant as first attending on 1 November 2006 with a complaint of stress fracture in his left foot. It appears the applicant was then the subject of a claim under the Military Rehabilitation and Compensation scheme and a number of subsequent attendances concern his unhappiness about a denial of a claim for some benefits. A consultation with Dr Blackwell on 14 August 2007 records:
Needs form completed for anxiety disorder re rebates for travel expenses. I will need to speak with his psychologist.
40.On 21 May 2008 – being the same day Dr Clarke wrote his report (refer earlier) – Dr Slabbert diagnosed depression, provided a prescription for Lexapro tablets and recommended a continuation of counselling.
41.On 12 January 2009 another doctor in the Hamilton Medical Group who the applicant consulted with a complaint of left arm pain, recorded that he had ceased taking Lexapro medication.
42.On 23 February 2009 another doctor in the Hamilton Medical Group diagnosed depression and prescribed Zoloft medication. The notes also record depression, marriage separation, depressed army reserve.
43.The above notes were provided to the respondent on 22 August 2009, more than 12 months before the first day of hearing. The nature of the applicant’s treatment, if any, subsequent to provision of those records is not known.
44.On 17 February 2009, four days after commencing his deployment as part of Operation VIC Fire Assist (initiated following the black Saturday bushfires), and whilst a member of the Army Reserve, the applicant said during a psychology assessment that his deployment was an overall positive deployment experience. It was also recorded that his
Mild elevations in symptoms are as a result of recent separation, not deployment and this is reportedly being well managed by external agencies (Exhibit R8, p. 12).
45.In August 2010, 17 months later, the applicant underwent another psychology assessment, which recorded the applicant as having enjoyed a positive experience (during Operation Fire Assist) as he felt able to help and relate to the fire victims well (Exhibit R8, p. 5). In a section headed Reintegration Issues it was reported that the applicant was then going through an acrimonious divorce, was seeking custody of his two children, and he went through a period of depression around two years ago and has been undertaking regular counselling through VVCS since this time. It was reported that the applicant had suffered some increased stress relating to repercussions of marriage breakdown and
…through counselling has learned to manage self-care – diet, exercise, sleep, alcohol intake etc and has learned effective coping skills. Some fatigue associated with on-going personal stressor, but overall reports to be managing well.
46.In a questionnaire completed by him as part of that psychology assessment the applicant recorded that in the preceding four weeks, for A little of the time he had felt nervous; so nervous that nothing could calm you down; restless or fidgety; so restless that you could not sit still, and so sad that nothing could cheer you up. For None of the time he did not feel hopeless; depressed; worthless. In the preceding month he had not suffered disturbing dreams of a stressful experience from the past; avoided activities or situations because he was reminded of a stressful experience from the past or felt that his future somehow will be cut short. For A little bit he had suffered repeated disturbing memories, thoughts or images of a stressful experience from the past and avoiding activities or situations which reminded him of a stressful experience from the past. He avoided thinking or talking about such an experience; had trouble remembering important parts of a stressful past experience; felt distant, loss of interest and emotionally numb; difficulty concentrating and feeling jumpy or easily startled (Exhibit R8, p. 7-8).
47.Dr Entwisle, who examined on behalf of the applicant’s solicitors, diagnosed the applicant as suffering from dysthymic disorder. He concluded the diagnostic criteria for dysthymic disorder was satisfied (Exhibit A2) and he was satisfied it was service related (Exhibit A4). Dr Entwisle was also aware of a report completed by Dr Strauss of 4 May 2010. He disagreed with the opinions expressed in that report (Exhibit A3).
48.In a fourth report of 25 January 2011, Dr Entwisle (Exhibit A8) recorded he had read the reports of Dr Clarke and the psychology reports completed following Operation VIC Fire Assist. He acknowledged that the despite the history concerning the applicant’s relationship with his wife, which were germane and contributory, towards diagnosis, he remained of the opinion that dysthymic disorder is service related.
49.Dr Strauss, in a report of 4 May 2010 (Exhibit R4), recorded that the applicant had symptoms of anxiety and depression due to personal factors. He thought he was anxious and depressed but his symptoms have settled down gradually and he has come to terms with his marital breakdown and had some counselling. He was of the opinion that the applicant did not have a condition capable of diagnosis and reaffirmed that opinion in supplementary report of 18 January 2011 (Exhibit R7).
CONCLUSION
50.In his cross-examination, the respondent challenged the applicant about some of the answers that he gave to psychologists who assessed him from time to time whilst he was enlisted. He said he and other personnel tended to treat the debriefing assessments as a bit of a joke (Transcript, p. 72), that he did not take assessments seriously, he was concerned about how he would be perceived amongst his peers if he did express his anxieties and he was then in a bit of denial (Transcript, p. 73). When pressed on these issues the applicant said he
…didn’t take talking to Army psychologists seriously and I felt a lot more comfortable talking to civilian psychologists (Transcript, p. 75).
51.It is difficult in these circumstances to attach weight to or interpret the contents of those assessments.
52.We note that the applicant resigned from the Army after three periods of overseas service. It does not appear that he suffered any negative service related consequences arising out of service in East Timor or Sumatra. The nature of the service in Iraq, on his description, would more than likely have caused him to be anxious. The daily events of travelling to and from the airport, working at the airport and driving a vehicle through Baghdad are likely to have provoked anxiety. Additionally, there was the episode involving the suspected breach of a perimeter fence. Shortly after the applicant returned to Australia, the conflict in his marriage emerged.
53.It is of considerable credit to the applicant that he sought counselling by a psychologist in Townsville. It is unfortunate that those records could not be located. It is also to his credit that he has undertaken counselling by Dr Clarke in Warrnambool and more recently with Ms Becker.
54.Whilst one or more of the events in service in Iraq may satisfy the Part (A)(1) definition of PTSD as derived from DSM-IV-TR and as reproduced in the Statement of Principles (SoP) (No 5 of 2008) we do not find, as a fact, that Part A(2) is satisfied, namely the applicant’s response involved intense fear, helplessness or horror. (In applications where PTSD is not in issue, it would be impermissible to make these findings. When PTSD is the diagnosis in issue, these findings, in the process of determining the diagnosis, must be made. Unless the traumatic event, as defined, occurred, the diagnosis cannot be found, as a fact, to exist – refer Mines v Repatriation Commission [2004] 40 AAR 238 at [39]).
55.Similarly, we cannot be satisfied that the applicant meets the requisite parts of the remainder of the definition.
56.The applicant is a young man who returned from being engaged in service in Iraq to the relative tranquillity of Western Victoria. He has endured the unpleasantness of marital breakdown and attempts to secure access to his children. He has been engaged in full-time salaried employment, has found private accommodation and has benefited from the counselling that he initiated.
57.We doubt that the applicant ever suffered from PTSD or if he did, on the material before us, he did not, at the date of review. The applicant confirms that he did not ever suffer flashbacks, he is generally not vigilant or avoidant, his sleeping is not affected, he enjoys his work and is able to concentrate and can rapidly remove himself from a state of agitation (refer Transcript, p. 62-63). Dr Entwisle took a similar history (Exhibit A2, p. 5). The absence of these features points to inability to satisfy many of the clinical criteria of PTSD.
58.It may be that the applicant, previously, would have satisfied the definition of dysthymic disorder and therefore have been properly diagnosed. However, we believe that he has made considerable progress by his therapy and counselling. We are not satisfied that he now suffers dysthymic disorder. He does not now suffer insomnia, poor concentration or a feeling of hopelessness (clinical criteria at (B) for dysthymic disorder in DSM-IV-TR) His current symptoms do not now cause clinically significant distress or impairment in social, occupational or other important areas of functioning (refer clinical criteria at (H)). His evidence, although not expressed in similar language, points to an absence of these symptoms or features (Transcript, p. 63-64).
59.In all of the circumstances, we are of the view that the opinions expressed by Dr Strauss are to be preferred. The applicant is from time to time depressed or anxious but he does not satisfy the clinical definition of dysthymic disorder or for that matter any of the other psychiatric conditions within the ambit of the diagnosis of depressive disorder, namely, major depressive episode; recurrent major depressive disorder; depressive disorder not otherwise specified; substance induced mood disorder with depressive features or mood disorder due to a general medical condition with depressive features or with major depressive like episodes.
60.Our responsibility is to determine the correct or preferable decision on the material before us at the date of review. For reasons given above, we cannot find at the date of this review that the applicant suffers from an illness or injury which is capable of diagnosis.
61.In those circumstances, we are not obliged to consider or determine a relationship between service and illness.
62.The decision under review will be affirmed.
I certify that the sixty-two [62] preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member
Dr Kerry Breen, Member
Signed: …………………[signed]………………………………
Associate Grace Horzitski
Dates of Hearing: 29 November 2010, 1 March 2011
Date of Decision: 17 June 2011
Solicitor for the applicant: Williams Winter Solicitors
Counsel for the applicant: Mr A. Larkin
Solicitor for the respondent: Department of Veterans’ Affairs
Counsel for the respondent: Mr G. Purcell
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