Lockwood and Repatriation Commission
[2006] AATA 1508
•21 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1508
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/764
VETERANS APPEALS DIVISION ) Re Ronald Lockwood Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Ms N Bell, Senior Member
Dr J Campbell, MemberDate 21 December 2006
PlaceSydney
Decision The decision under review is varied to the extent that Mr Lockwood’s hypertension is service related. In all other respects, the decision as to Mr Lockwood’s entitlement to pension is affirmed. The matter is remitted to the Commission to assess the appropriate rate of pension to be paid to Mr Lockwood.
....................[Sgd]......................
Ms N Bell
Senior Member
COMPENSATION – Disability Pension – Hypertension – Anxiety Disorder – Alcohol Abuse or Dependence – Conditions to be Determined on the Balance of Probabilities – War Causation – HMAS Melbourne – HMAS Sydney – USS F.E Evans – Post Traumatic Stress Disorder
Deledio v Repatriation Commission (1997) 47 ALD 261
Lees v Repatriation Commission [2002] FCA 398
Veterans Entitlements Act (1986) Cth
REASONS FOR DECISION
Ms N Bell, Senior Member
Dr J Campbell, Member
1. Mr Lockwood claimed disability pension in respect of three conditions: hypertension, anxiety disorder and alcohol abuse or dependence. The issues are, broadly, whether he has those conditions or other, similar conditions, and, if so, whether they are war caused. Mr Lockwood had operational service from 14 September 1965 to 20 October 1965, 25 April 1966 to 6 May 1966 and 25 May 1966 to 9 June 1966.
2. The issue of the correct diagnosis of Mr Lockwood’s conditions must be determined by us on the balance of probabilities. The issue of war causation in respect of the conditions properly diagnosed must be determined on the basis of reasonable hypothesis and in accordance with the steps outlined in the decision of the Full Federal Court in Deledio v Repatriation Commission (1997) 47 ALD 261.
3. In the course of the hearing of Mr Lockwood’s application, a number of concessions were made by the Repatriation Commission. They are that Mr Lockwood does suffer from hypertension and that condition is war caused and that he does suffer from anxiety disorder. However, the Commission maintains its position that Mr Lockwood’s anxiety disorder is not war caused and that he does not suffer from alcohol dependence or alcohol abuse.
4. We consider that the concessions made by the Commission are supported by the evidence and material before the Tribunal. In particular, the evidence of Mr Lockwood, and Drs Dinnen and Altman cumulatively satisfies us that Mr Lockwood meets the diagnostic criteria for generalised anxiety disorder, in that he worries excessively and cannot control it, feels on edge, cannot concentrate and his sleep is disturbed, and his anxiety is sufficiently clinically significant to require ongoing treatment by Dr Altman, Psychiatrist.
5. We also note that the Military Compensation and Rehabilitation Service decided, in 2005, to accept his claim for compensation for anxiety disorder arising out of his service including his exposure to the collision between the HMAS Melbourne and the USS F.E. Evans in 1969.
6. Mr Perry, for Mr Lockwood, urged us to consider, in the alternative and for the purposes of establishing the date of clinical onset, a diagnosis of anxiety due to a general medical condition or anxiety disorder not otherwise specified. The first of these conditions requires, under the diagnostic criteria in DSM – IV, that the disturbance is the direct physiological consequence of a general medical condition. There is no evidence to that effect before us. The second condition requires, under DSM –IV, prominent anxiety or phobic avoidance and not meeting the criteria for any specific anxiety disorder. Given that we have already found that Mr Lockwood meets the diagnostic criteria for generalised anxiety disorder, a diagnosis of anxiety disorder not otherwise specified is not available.
7. Mr Perry also urged us to consider a diagnosis of post traumatic stress disorder. Leaving aside the question of whether the stressor relied on by Mr Lockwood (the scare charges while on the HMAS Sydney at Vung Tao) amounts to a severe stressor within the meaning of the relevant Statement of Principles, we are not satisfied, on the evidence before us, that he meets the other relevant diagnostic criteria for this condition. We note that the diagnostic criteria in DSM – IV require, at paragraph C:
C. persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:
1) efforts to avoid thoughts, feelings, or conversations associated with the trauma
2) efforts to avoid activities, places or people that arouse recollections of the trauma
3) inability to recall an important aspect of the trauma
4) markedly diminished interest or participation in significant activities
5) feeling of detachment or estrangement from others
6) restricted range of affect (e.g. unable to have loving feelings)
7) sense of foreshortened future (e.g. does not expect to have a career, marriage, children or a normal life span)
8. Mr Lockwood’s evidence was that he has a diminished interest in participation in activities and is detached from others. However, the only other element in paragraph C of which there was any evidence was Dr Altman’s evidence that Mr Lockwood reported to him that he avoids talking about his war experiences, watching war movies and he avoids reunions. Mr Lockwood gave no evidence of this at the hearing. We note that, in other areas of Dr Altman’s report, Mr Lockwood’s evidence to the Tribunal was at considerable variance (see, in particular, Dr Altman’s report in relation to Mr Lockwood’s “major problems at work”). We also note that Dr Dinnen considers that Mr Lockwood does not suffer from post traumatic stress disorder although he may have had a mild version of that disorder at the time of his experience on the HMAS Sydney. However, Dr Dinnen considered that Mr Lockwood now suffers from anxiety disorder. Given that we must be reasonably satisfied of diagnosis, and the less stringent standard of reasonable hypothesis does not apply, we are not satisfied, on the basis of Dr Altman’s report alone, that Mr Lockwood meets the necessary three criteria in paragraph C of the DSM – IV diagnostic criteria for post traumatic stress disorder.
9. It follows that the only issues for us to consider are:
·whether Mr Lockwood suffers from alcohol abuse or alcohol dependence; and
·if so, whether that condition is war caused; and
·whether Mr Lockwood’s anxiety disorder is war caused.
alcohol abuse or alcohol dependence
10. To determine whether Mr Lockwood has alcohol abuse or alcohol dependence we must refer to the diagnostic criteria for each of those conditions in the DSM-IV. The criteria for alcohol abuse are:
A. A maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:
1. Recurrent substance use resulting in a failure to fulfil major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to substance use; substance-related absences, suspensions, or expulsions from school; neglect of children or household).
2. Recurrent substance use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by substance use).
3. Recurrent substance-related legal problems (e.g., arrests for substance- related disorderly conduct).
4. Continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance (e.g., arguments with spouse about consequences of intoxication, physical fights).
B. The symptoms have never met the criteria for Substance Dependence for this class of substance
11. Mr Lockwood gave evidence of a pattern of very heavy drinking that included three or four tumblers of bourbon on some days together with two or three bottles of wine per week and six to 10 schooners of beer per day.
12. While he said he takes two or three sick days per month, mainly because he is hung over, he has held his job at Gosford Hospital without incident since 1997. His partner, Ms Geary, formerly his supervisor, said his performance at work has always been very good. While Mr Lockwood blamed alcohol for the breakdown of his first marriage, he and Ms Geary have been together for approximately 18 years. He said they have no sexual relationship and he blames alcohol for that but they do not argue. This evidence does not support a finding of failure to fulfil a major role or obligations at work or home. We note, however, that Dr Graham Altman, treating Psychiatrist, in his report of 24 November 2003, described a history of “major problems at work” and his partner describing Mr Lockwood as “flying off the handle”. This is in direct contrast to the evidence given by Mr Lockwood and Ms Geary at the hearing. Dr Altman did not give evidence at the hearing. We prefer Mr Lockwood’s evidence of his own symptoms. The criterion in A(1) above is therefore not satisfied.
13. Mr Lockwood described being charged with negligent driving when he ran over a motorbike rider in 1972. He said he was drunk at the time. He said he has not driven whilst under the influence of alcohol for about 18 years. This was his only evidence of activity relevant to drinking in physically hazardous situations or of alcohol related legal problems and does not support a finding that the diagnostic criteria in A(2) and (3) are satisfied.
14. Mr Lockwood said he does not get into fights or arguments. He remains living with his partner, Ms Geary, and he has a continuing relationship with his children. While we accept that Mr Lockwood is withdrawn and keeps to himself, we do not find he has persistent or recurrent social or interpersonal problems caused or exacerbated by alcohol. He therefore does not satisfy, on his evidence, the diagnostic criteria in A(4).
15. We note that Dr Dinnen, Psychiatrist, diagnosed alcohol abuse but did so making no reference to the diagnostic criteria in DSM-IV. He conceded, in oral evidence, that Mr Lockwood had held down a job and a relationship and so had some measure of control but that concession was limited to diagnosing alcohol abuse rather than alcohol dependence. The report of Dr Maclean, Psychiatrist, was also before us. He also diagnosed alcohol abuse but made no reference to the diagnostic criteria. Dr Dinnen’s and Dr Maclean’s opinions do not alter our view that, on the balance of probabilities, Mr Lockwood does not suffer from alcohol abuse.
16. The diagnostic criteria for alcohol dependence is:
1. Tolerance, as defined by either of the following:
a. a need for markedly increased amounts of the substance to achieve intoxication or desired effect
b. markedly diminished effect with continued use of the same amount of the substance
2. Withdrawal, as manifested by either of the following:
a. the characteristic withdrawal syndrome for the substance (refer to Criteria A and B of the criteria sets for Withdrawal from the specific substances)
b. the same (or a closely related) substance is taken to relieve or avoid withdrawal symptoms
3. The substance is often taken in larger amounts or over a longer period than was intended
4. There is a persistent desire or unsuccessful efforts to cut down or control substance use
5. A great deal of time is spent in activities necessary to obtain the substance (e.g., visiting multiple doctors or driving long distances), use the substance (e.g., chain-smoking), or recover from its effects
6. Important social, occupational, or recreational activities are given up or reduced because of substance use
7. The substance use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the substance (e.g., current cocaine use despite recognition of cocaine-induced depression, or continued drinking despite recognition that an ulcer was made worse by alcohol consumption)
17. The only evidence given by Mr Lockwood that is relevant to the above diagnostic criteria was that he has recently begun to drink bourbon in addition to wine and beer and that he has, on a couple of occasions, tried to stop drinking but found he could not sleep. He described his effort to stop as hopeless.
18. Only Dr Altman diagnosed alcohol dependence, making no reference to the diagnostic criteria. Dr Skinner, Psychiatrist, suggested a possibility that he may have alcohol dependence but she noted there was no evidence of withdrawal symptoms and such a diagnosis would be speculation.
19. We cannot be satisfied that Mr Lockwood meets, as the DSM-IV requires, at least three of the diagnostic criteria set out above. We must therefore conclude that he does not suffer from alcohol dependence.
anxiety disorder
20. In considering whether Mr Lockwood’s anxiety disorder was war caused, we followed the steps set out in the decision of the Federal Court in Deledio (supra).
21. First, we considered whether there is material before us that points to a hypothesis of war causation. The hypothesis put forward by Mr Lockwood is, in essence, that his experience on the HMAS Sydney in Vung Tau Harbour in September 1965, including scare charges, amounted to a stressor that gave rise to his anxiety disorder.
22. Mr Lockwood gave evidence of working below deck on the HMAS Sydney and hearing scare charges at regular intervals. He said the first time he heard a scare charge he thought it might have been a mine, hitting the side of the ship, and he wondered how he would escape. He said he was mindful that, when a compartment of a ship is damaged, it is locked down so that water does not flood into other compartments of the ship. He said his only thought was whether he could get out and he felt frightened, sick in the stomach and had a very dry mouth. He said that from that time he was unable to sleep well and when he did he would wake up breathless and gasping for air. He also said he began, on the HMAS Sydney, having a dream in which he is trying to get out of the ship through a hole made by a bomb or a mine and is unable to reach the surface before he runs out of breath. He said he still has that dream today. Both Dr Dinnen and Dr Altman, in the histories they took from Mr Lockwood, confirmed these experiences.
23. There is, then, material before us that points to a hypothesis of war causation of Mr Lockwood’s anxiety disorder.
24. We turned then to the question of whether Mr Lockwood’s hypothesis is reasonable. Anxiety disorder is the subject of Statement of Principles No. 1 of 2000 and, in accordance with section 120A of the Veterans Entitlements Act (1986) in order to be a “reasonable hypothesis” it must conform with the template in that SoP. Relevantly, SoP No. 1 of 2000 provides:
Factors
5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting anxiety disorder or
death from anxiety disorder with the circumstances of a person’s
relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise
specified, only
(i) being a prisoner of war before the clinical onset of anxiety
disorder; or
(ii) experiencing a severe psychosocial stressor within the two
years immediately before the clinical onset of anxiety
disorder; or
(iii) having a clinically significant psychiatric condition within
the two years immediately before the clinical onset of
anxiety disorder; or
(iv) having a major illness or injury within the two years
immediately before the clinical onset of anxiety disorder;
or
(v) experiencing a severe psychosocial stressor within the two
years immediately before the clinical worsening of anxiety
disorder; or
(vi) having a major illness or injury within the two years
immediately before the clinical worsening of anxiety
disorder; or
(vii) having a clinically significant psychiatric condition within
the two years immediately before the clinical worsening of
anxiety disorder; or
(b) for anxiety disorder due to a generalised medical condition only,
having an endocrine, cardiovascular, respiratory, metabolic or
neurological disorder, where the disorder is a direct physiological
cause of the anxiety at the time of the clinical onset of the anxiety
disorder; or
(c) inability to obtain appropriate clinical management for anxiety
disorder.
25. The factor relevant to Mr Lockwood’s hypothesis is factor 5(a)(ii) above. The elements of that factor are:
·Experiencing a severe psychosocial stressor (as defined later in the SoP);
·Clinical onset of anxiety disorder within two years after experiencing the stressor.
26. We turn to the second of these elements first. In Lees v Repatriation Commission [2002] FCA 398 the Full Federal Court said, in response to a submission that for a disease of gradual onset it would be sufficient if only one of the prescribed symptoms has manifested:
[16] However, this approach overlooks the clear words of the applicable SoPs and the function they perform in the legislative scheme. In relation to SoP1, the definition of “generalised anxiety disorder” does not suggest that the disease exists if only some but not all of the symptoms (or features) are manifest. The exception to this statement is para C which provides that only three of the six specified symptoms are necessary for the disease to exist, though in the frequency and for the period identified. The purpose of the definition is to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from generalised anxiety disorder. While it is true that SoPs are directed to causation, the means of establishing the necessary link in SoP1 between disease and war service is to require that the symptoms (or features) of the disease are, in a case such as the present, revealed within 2 years of the veteran experiencing a severe psychosocial stressor (relevantly, during operational service). This is intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis.
27. It is necessary, then, to look for all of the symptoms required by the definition of the disease in the SoP and to find material pointing to their manifestation in Mr Lockwood within the two years immediately following his time in Vung Tau Harbour. We included, in our search, not only material from Mr Lockwood’s and his partner’s evidence but also the material arising from the evidence given by medical witnesses of the things told to them by Mr Lockwood.
28. The definition of generalised anxiety disorder in SoP No. 1 of 2000 is:
“generalised anxiety disorder” means a psychiatric disorder with the
following features:
A. Excessive anxiety and worry (apprehensive expectation), which
occur on more days than not for a continuous period of at least six
months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the
following six symptoms, with at least some symptoms present for
more days than not during the previous six month period:
(1). restlessness or feeling keyed up or on edge
(2). being easily fatigued
(3). difficulty concentrating or mind going blank
(4). irritability
(5). muscle tension
(6). difficulty falling or staying asleep, or restless unsatisfying
sleep; and
D. The focus of the anxiety and worry is not confined to features of
any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C.
above) cause clinically significant distress or impairment in social,
occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological
effects of a substance or a general medical condition and do not
occur exclusively during a mood disorder, a psychotic disorder, or
a pervasive developmental disorder;
29. These are the signs and symptoms that must be present to establish clinical onset.
30. We are satisfied that Mr Lockwood’s evidence points to the presence of excessive worry, on more days than not, that is difficult to control and which began during his time on the HMAS Sydney.
31. As to the symptoms in paragraph C of the criteria, we find, from Mr Lockwood’s evidence, material pointing to him having difficulty sleeping and feeling on edge while on the HMAS Sydney. We also note his evidence of feeling sick in the stomach, fidgety and very uncomfortable and of having shortness of breath and sweating. Dr Skinner, in her report of 13 December 2004, reported a history of reading on board ship, but not since he left the Navy in 1975, because his concentration is not good. This does not point to Mr Lockwood having difficulty concentrating within the relevant 2 year period.
32. Dr Dinnen’s evidence, in his report and orally, did not add to the material pointing to the required symptoms. We note his evidence that the full range of symptoms can be assumed by clinical inference but also his concession that, on the basis of the information he has now, he cannot make a diagnosis of a clinical level of anxiety during the relevant two year period.
33. Dr Altman, while describing many of Mr Lockwood’s current symptoms as reported to him, added little to the material pointing to the signs and symptoms that manifested during the relevant two year period.
34. In addition, there is no material pointing to Mr Lockwood having clinically significant distress or impairment in social, occupational or other important areas of functioning, as required in paragraph E of the diagnostic criteria, during the relevant two year period.
35. It follows that there is not before us material pointing to enough of the required signs and symptoms of anxiety disorder to, in turn, point to the clinical onset of that condition within the two years immediately following his visit to Vung Tau Harbour. Therefore, Mr Lockwood’s hypothesis does not conform to the template in the SoP and his anxiety disorder is not war caused. It is not necessary for us to consider whether his experience on the HMAS Sydney amounted to a severe stressor within the meaning of the SoP.
decision
36. The decision under review is varied to the extent that Mr Lockwood’s hypertension is service related. In all other respects, the decision as to Mr Lockwood’s entitlement to pension is affirmed. The matter is remitted to the Commission to assess the appropriate rate of pension to be paid to Mr Lockwood.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member
Signed: ..............[ Sanjiv Shah ]...............
AssociateDates of Hearing 25 and 26 September 2006
Date of Decision 21 December 2006Counsel for the Applicant Michael Perry
Solicitor for the Applicant Bob WhyburnSolicitor for the Respondent Kevin Herman
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