Long and Repatriation Commission (Veterans' entitlements)
[2018] AATA 1841
•22 June 2018
Long and Repatriation Commission (Veterans' entitlements) [2018] AATA 1841 (22 June 2018)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/3326
Re:Terry Raymond Long
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:22 June 2018
Place:Sydney
The Tribunal varies the decision made by a delegate of the Repatriation Commission on 23 April 2015, deciding that:
·Mr Long did not suffer from Post-Traumatic Stress Disorder or Alcohol Use Disorder during the assessment period, and
·Mr Long did suffer from Persistent Depressive Disorder and Cannabis Use Disorder during the assessment period but neither condition is connected to service.
...............[sgd].........................................................
Mrs J C Kelly, Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – disability pension – post-traumatic stress disorder – alcohol use disorder – substance use disorder – depressive disorder – whether applicant suffers from medical conditions – whether there is a connection between medical conditions and eligible defence service – decision varied
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 120, 120B
Statement of Principles concerning Alcohol Use Disorder (No. 2 of 2009) made under subsection 196B(3) of the Veterans’ Entitlements Act 1986
Statement of Principles concerning Alcohol Use Disorder (Balance of Probabilities) (No. 49 of 2017) made under subsection 196B(3) of the Veterans’ Entitlements Act 1986
Statement of Principles concerning Depressive Disorder (No. 84 of 2015) made under subsection 196B(3) of the Veterans’ Entitlements Act 1986
Statement of Principles concerning Substance Use Disorder (No. 4 of 2009) made under subsection 196B(3) of the Veterans’ Entitlements Act 1986
Statement of Principles concerning Substance Use Disorder (Balance of Probabilities) (No. 60 of 2017) made under subsection 196B(3) of the Veterans’ Entitlements Act 1986
CASES
Benjamin v Repatriation Commission [2001] FCA 522, (2001) 64 ALD 411
Repatriation Commission v Cooke [1998] FCA 1717, (1998) 160 ALR 17
Repatriation Commission v Moss (1982) 40 ALR 553
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
22 June 2018
BACKGROUND
Mr Long was born in 1964. He served in the Australian Army from 23 September 1981 until 22 October 1984.
On 7 October 2014, he claimed for pension for psychiatric conditions, “PTSD/Alcohol Dependence”. On 23 April 2015, a delegate of the Repatriation Commission refused the claim for PTSD, Alcohol Use Disorder and Depressive Disorder (the reviewable decision in this Tribunal). The Veteran’s Review Board (VRB) affirmed that decision on 6 June 2016.
Mr Long has a history of alcohol abuse and use of cannabis. Two psychiatrists, Doctors Brash and Smith, have diagnosed that Mr Long suffers from psychiatric conditions.
In his report dated 5 June 2014, Dr Brash diagnosed:
·Post-Traumatic Stress Disorder (PTSD),
·Depressive Disorder as a consequence of PTSD, and
·Alcohol Dependence, in remission.
In his report dated 20 March 2017, Dr Smith diagnosed:
·Alcohol Use Disorder, in remission,
·Cannabis Use Disorder, and
·Persistent Depressive Disorder.
ISSUES
The issues for the Tribunal are:
·which of those diagnoses is appropriate, and
·whether any one or more of the diagnosed conditions was/were connected to his service.
The Tribunal has to determine both the kind of injury or disease (that is, the psychiatric condition/s) that Mr Long suffers, and whether there is a connection between Mr Long’s eligible defence service and his psychiatric condition/s, to its reasonable satisfaction/on the balance or probabilities.[1]
[1] Veterans’ Entitlements Act 1986 (Cth) s 120(4) and s 120B; Repatriation Commission v Cooke [1998] FCA 1717, (1998) 160 ALR 17; Benjamin v Repatriation Commission [2001] FCA 522, (2001) 64 ALD 411.
The connection between the diagnosed condition and service has to be made according to the relevant Statement of Principles (SoP).
WHICH ARE THE APPROPRIATE DIAGNOSES?
The lay advocate appearing for Mr Long said that he did not press Dr Brash’s diagnosis of PTSD and would rely on the diagnoses made by Dr Smith. However, the Tribunal has decided that it should consider all the diagnoses on the evidence and make findings as to which are appropriate.
Mr Long has applied to have various medical conditions accepted as related to service since about 2001. His first claims to the Department of Veterans’ Affairs for lumbar spondylosis, strain of the neck and rotator cuff syndrome of the right shoulder were rejected in March 2002. In February 2012, acquired cataracts in both eyes were accepted, and in January 2013, cervical spondylosis was accepted. In March 2013, tinea of the skin, headaches and scoliosis were rejected. On 12 May 2014, lumbar spondylosis, chronic pancreatitis, gastro-oesophageal reflux disease and rotator cuff syndrome of the right shoulder were rejected on review, by the VRB. Mr Long had appeared before the VRB in relation to those claims on that day and was represented by the same lay advocate as represented him at the Tribunal hearing.
Mr Long told the Tribunal that he had gone to see Dr Brash after speaking to another veteran. He saw Dr Brash on 4 June 2014, about three weeks after the VRB hearing. In the first paragraph of his report dated 5 June 2014, Dr Brash wrote that he was sending a copy of his letter to Mr Long’s lay advocate “who is assisting him in obtaining an increase in his Veterans’ Affairs Pension”.
When it was put to Mr Long at the hearing that his statement to Dr Brash was the first time he had suggested that his drinking alcohol was the result of a specific incident during service, Mr Long said that that may have been the first time that he was aware of it. When it was put to him that that was about three weeks after he had told the VRB that he had started drinking alcohol because of peer pressure and wanting to fit in, Mr Long said that he knows that he has spoken about what happened to him a lot in the past but could not say who to or for what reason. The question accurately stated Mr Long’s evidence as recorded in the VRB’s decision.
The VRB decision is dated 12 May 2014. It states that Mr Long’s lay advocate “conceded there could well be difficulties finding that the alcohol habit was service-caused based on the material the applicant supplied in his alcohol questionnaire”. The Tribunal finds that is the Alcohol Questionnaire he completed on 22 February 2012, in which Mr Long set out his consumption of alcohol and stated that he began to consume alcohol on a regular basis on enlistment in 1981 because of “peer pressure; military culture if you did not drink you were not accepted”. That accompanied his claim for several conditions, including pancreatitis, which was dated 12 April 2012. Dr Karsai represented Mr Long at that time. It is not apparent whether Dr Karsai was a doctor of medicine. He was from the Veterans Pension Office, Vietnam Veterans Peacekeepers & Peacemakers Association of Australia.
Dr Batagol was Mr Long’s general practitioner. He completed a “Medical Report – Alcohol Consumption Chronic Pancreatitis”, in support of the 2012 claim. He stated that clinical onset was October 2009. He dated onset of alcohol abuse or dependence from 1981 with remission in 2004 and weekly alcohol consumption of 140 standard drinks, and date of onset of alcohol abuse or dependence 2006 to current, consuming 50-60 standard drinks per week. The Tribunal infers that a one page “Medical Report – Alcohol Consumption Gastro-Oesophageal Reflux Disease” was also filled out by Dr Batagol at the same time. It
clearly states that alcohol consumption from 1981 to 2004 was “140 STD drinks a week”. It is on that basis that the Tribunal has read the unclear figure on the previous document as “140” rather than “14”.
Hospital records in evidence showed that Mr Long had been admitted with pancreatitis on 18 February 2012, 11 and 12 June 2012, and 3 August 2011.
In a document dated 25 March 2013 Dr Karsai completed an application for a review by the VRB of the 2012 claims, including pancreatitis. He claimed that Mr Long’s service documents showed that he consumed at least 180 kgs of alcohol within a five year period before the clinical onset of chronic pancreatitis.
Dr Batagol completed a “Disfigurement and Social Impairment” form in respect of “Acquired cataracts in both eyes and cervical spondylosis” on 28 October 2014. His comment on Mr Long’s “emotional reaction to these changes of appearance, behaviour or body movements” was: “Anger, depression, reduced self-esteem. Reinforce desire to drink & hide awareness of the problem”.
Mr Long signed a form on 25 March 2013 in which he stated that he ceased work on 2 February 2012 because of “illness”. The Tribunal accepts that is correct and finds that he ceased work because of pancreatitis and received the Disability Support Pension (DSP). It also finds that he ceased drinking alcohol at that time. That finding is based on Mr Long’s evidence and his reports to Doctors Brash and Smith.
On the evidence, including Mr Long’s service records and his evidence, the Tribunal finds that Dr Brash was the first and only psychiatrist he consulted. He has received no treatment from Dr Brash.
On 7 October 2014, Mr Long made what was considered an informal claim for PTSD/Alcohol dependence, relying on Dr Brash’s report, although it seems that it was not included. On 20 February 2015, he made what was recognised as a formal claim for the same conditions. Dr Brash’s report was submitted. That is the only report from Dr Brash, although the claim form states that Mr Long was treated for PTSD by Dr Brash in September 2014. Mr Long told Dr Smith that he only consulted Dr Brash on one occasion. The Tribunal accepts that is correct.
Mr Long submitted a Claimant Report he signed on 22 December 2014 in which he described an incident that occurred during the first few weeks of basic training at Kapooka in September-October 1981 (“the incident”). Mr Long has given generally consistent accounts of the incident since he first reported it to Dr Brash in June 2014.
In summary, Mr Long said that another recruit was severely beaten in his bed when they were all off-duty, at the suggestion of a corporal because the recruit was unco-ordinated. The recruit was in a room across the hall and two doors down from Mr Long’s room. They were all interviewed by military detectives. Mr Long lied to them. He did not check on the victim because he was too frightened.
Mr Long was referred to Dr Brash by Dr Batagol. Dr Brash reported that Mr Long told him that soon after the incident he was chosen to go in a boxing match but his opponent was a champion boxer and Mr Long was quite badly beaten. Dr Brash said:
[Mr Long] was so distressed about these experiences that he took up smoking and began drinking alcohol at the age of 17, using alcohol as a way of trying to get to sleep. His use of alcohol over the years escalated and has now become a severely extreme problem.
Dr Brash diagnosed PTSD because Mr Long had witnessed (indirectly) the incident which left him “totally horrified and frightened”. He set out Mr Long’s difficult family history which included both parents drinking alcohol, his father gambling, and committing suicide when Mr Long was two years old, a failed marriage because of his drinking, a work history which included rising to fairly good positions but being “invariably sacked because of abusive behaviour while intoxicated”, and behavioural problems “that have ended him in trouble with the law on more than occasion”. He recorded that Mr Long had been in a relationship for 15 years. Dr Brash did not refer to any SoP.
Dr Smith examined Mr Long on 17 March 2017 at the request of the respondent. Mr Long told Dr Smith that he began using marijuana when he was 32 years old and had become dependent on marijuana when he relinquished alcohol in 2012. He used it to relieve the pain he suffers from various medical conditions. Dr Smith recorded a more detailed family history than Dr Brash had, including Mr Long’s mother’s relationship with his stepfather and then another older man, both of whom abused her and drank alcohol. Mr Long said that the corporal instructed the recruits not to say anything to those investigating the
incident, and that Mr Long had voiced his disappointment to the corporal who then taunted him. He said that he was picked on when he then went to Singleton and continued to abuse alcohol.
Dr Smith reported Mr Long’s history of abusing alcohol during his army service and during his post-service employment, and consequent pancreatitis.
Dr Smith gave detailed reasons for his opinion that Mr Long did not demonstrate diagnostic criteria for PTSD and did not satisfy the SoPs for the psychiatric disorders he did diagnose. He said that the possibility that cannabis “may also be contributing to psychological impairments” could not be discounted. He did not agree with Dr Brash that Mr Long’s psychiatric disorders are related to his military service. Dr Smith’s opinion was that Persistent Depressive Disorder was “in all probability” multifactorial in origin. He also expressed the opinion that Mr long’s alcohol abuse and dependence was in remission and had been replaced by cannabis use disorder.
Findings
The Tribunal accepts Dr Smith’s opinions. It does not accept Mr Long’s claims from mid-2014 about the impact of the incident upon him. It was the first time he had raised the matter. He did not mention it in the Alcohol Questionnaire he completed on 22 February 2012 when he specifically addressed the question of what caused him to start to drink alcohol. He did not mention it during the VRB hearing in 2014. It was only after he was unsuccessful and his lay advocate had conceded explicitly that the information about alcohol use did not connect it with his service, that he mentioned the incident. Not mentioning it until that time is inconsistent with the incident causing him the distress he claimed. In making that finding, the Tribunal has taken into account his claims that his memory is not good and that cannabis affects his recollection of events but does not accept that explanation. The Tribunal accepts Dr Smith’s opinion that Mr Long does not satisfy the diagnostic criteria for PTSD.
The Tribunal finds that Mr Long was not suffering from Alcohol Use Disorder when he was examined by either Dr Brash or Dr Smith. Both stated that the condition was “in remission”. By the time he saw Dr Brash he had ceased drinking alcohol for 18 months
and had ceased for some years when he saw Dr Smith. He therefore did not meet the criterial for Alcohol Use Disorder at the time of assessment, as Dr Smith explained at the hearing.[2] That is so under both SOP No. 2 of 2009 and No. 49 of 2017.
[2]; Repatriation Commission v Moss (1982) 40 ALR 553.
Mr Long was diagnosed with Depressive Disorder and Substance Use Disorder. Dr Smith explained that he did not satisfy the SoPs for either condition. The Tribunal agrees.
The SoP for Depressive Disorder is Instrument No. 84 of 2015. The Tribunal has considered the factors that must exist to connect Persistent Depressive Disorder with Mr Long’s service, but is not satisfied on the balance of probabilities that any of the factors is satisfied.
The SoP for Substance Use Disorder was Instrument No. 4 of 2009. It has been replaced by SoP No. 60 of 2017. The Tribunal has considered the factors that must exist to connect Mr Long’s Substance Use Disorder with the circumstances of his service in both SoPs but is not satisfied on the balance of probabilities that any of the factors is satisfied.
DECISION
For the above reasons and taking into account all the diagnoses raised on the evidence before it, the Tribunal varies the decision made by a delegate of the Repatriation Commission on 23 April 2015, deciding that:
·Mr Long did not suffer from Post-Traumatic Stress Disorder or Alcohol Use Disorder during the assessment period, and
·Mr Long did suffer from Persistent Depressive Disorder and Cannabis Use Disorder during the assessment period but neither condition is connected to service.
I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
...............[sgd].........................................................
Associate
Dated: 22 June 2018
Date of hearing: 26 October 2017 Advocate for the Applicant: Mr T Latimore, RSL Veterans' Centre Solicitors for the Respondent: Ms E Baggett, Moray & Agnew Lawyers
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