Malady and Repatriation Commission
[2009] AATA 454
•23 June 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 454
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V200700028
VETERANS' APPEALS DIVISION ) Re Michael Malady Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Mr G L McDonald, Deputy President
Miss E A Shanahan, MemberDate23 June 2009
PlaceMelbourne
Decision
The Tribunal is satisfied that the applicant has the following war caused conditions – major depressive disorder and alcohol abuse and drug abuse. The decision under review is set aside and a decision substituted that he suffers the conditions as stated and the case is remitted to the respondent to calculate the pension payable.
.......(sgd. G L McDonald)..
Deputy President
CATCHWORDS – VETERANS’ ENTITLEMENTS ACT – whether the applicant should be paid a service disability pension – whether the veteran suffers from a war caused disease – borderline personality disorder – major depressive disorder – post traumatic stress disorder – alcohol dependence or abuse – drug dependence or abuse – application of statements of principles – decision under review set aside, applicant suffers major depressive disorder and alcohol abuse and drug abuse
Administrative Appeals Tribunal Act 1975 s 37
Veterans’ Entitlements Act 1986 ss 5D, 9, 14, 120 and 120A
Briginshaw v Briginshaw (1938) 60 CLR 336
Keeley v Repatriation Commission [1999] FCA 1103
Mines v The Repatriation Commission (2004) 86 ALD 62
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Malady [2006] FMCA 1050
REASONS FOR DECISION
23 June 2009 Mr G L McDonald, Deputy President
Miss E A Shanahan, MemberThe Application
1. In an application dated 3 August 2000 the applicant claimed, under s 14 of the Veterans’ Entitlements Act 1986 (“the Act”), that he was entitled to be paid a service disability pension. He claimed to be suffering “major depression.”[1] Dr Richard Green, a psychiatrist, entered a medical diagnosis on the application form as “PTSD [post traumatic stress disorder] followed by Major Depressive Disorder.”[2] By the time a delegate of the Repatriation Commission determined the claim, on 2 February 2001,[3] the conditions of ‘alcohol abuse’ and ‘drug abuse’ had been added. The delegate refused the claim in relation to all of the nominated conditions. The applicant applied for a review of that decision to the Veterans’ Review Board, but was unsuccessful.[4] The applicant then appealed to this Tribunal.
[1] Appeal Book, page 76.
[2] Appeal Book, page 76.
[3] Appeal Book, page 114.
[4] Appeal Book, page 7.
2. This Tribunal determined, on 28 July 2005, that the applicant’s conditions of major depressive disorder, alcohol dependence or abuse, and drug dependence or abuse were war-caused (“the first AAT hearing”). The respondent appealed that decision to the Federal Court of Australia which transferred the appeal to the Federal Magistrates’ Court which, on 8 December 2006, set aside the decision of the Tribunal on the grounds, in summary, that:
(a)the Tribunal did not give proper consideration to step three of the process determined by the Full Court of the Federal Court in Deledio’s case[5] in that it did not consider all of the material before it as it applied to each essential element of the applicable Repatriation Medical Authority Statement of Principles (SoPs);[6] and
(b)the Tribunal did not identify the hypotheses upon which it relied;[7] and
(c)the Tribunal did not properly consider the objective aspect of the ‘severe psychological stressor’ that the applicant suffered when considering the SoP definition of ‘major depressive disorder’;[8] and
(d)the Tribunal erred in not identifying the date of clinical onset of alcohol dependence for purposes of permitting a finding of ‘clinical worsening’ of the condition[9] and made the same error with respect to the findings of the applicant’s drug dependence;[10] and
(e)the Tribunal failed to take into account medical evidence (of Dr Nigel Strauss) connecting the applicant’s borderline personality disorder and his substance abuse[11] and the reverse, that is, whether the applicant’s drug abuse was related to his personality disorder;[12] and
(f)the Tribunal erred in not distinguishing whether the applicant suffered from ‘alcohol abuse’ or ‘alcohol dependence’, each condition having different diagnostic criteria.[13]
[5] Repatriation Commission v Deledio (1998) 83 FCR 82.
[6] Repatriation Commission v Malady [2006] FMCA 1050 at [100]-[110].
[7] Repatriation Commission v Malady [2006] FMCA 1050 at [115]-[116]
[8] Repatriation Commission v Malady [2006] FMCA 1050 at [124]-[128].
[9] Repatriation Commission v Malady [2006] FMCA 1050 at [140]-146].
[10] Repatriation Commission v Malady [2006] FMCA 1050 at [163]-[165].
[11] Repatriation Commission v Malady [2006] FMCA 1050 at [150]-[151].
[12] Repatriation Commission v Malady [2006] FMCA 1050 at [168]-[170].
[13] Repatriation Commission v Malady [2006] FMCA 1050 at [155].
The case was remitted to the Tribunal for rehearing. This is the decision and reasons resulting from that rehearing. As part of that process the Tribunal has referred to the SoPs which govern the terms on which a veteran’s medical conditions will be accepted as being war caused.
The Hearing
3. The Tribunal had before it the appeal book[14] prepared for the Federal Magistrates’ Court, which contained a copy of the documents in accordance with the requirements of s 37 of the Administrative Appeals Tribunal Act 1975. The Tribunal was told by the applicant’s solicitor that while appointments had been arranged for the applicant to be examined by various medical practitioners in preparation for this hearing, the applicant had not succeeded in attending any of the appointments. At the time of the hearing his whereabouts were unknown. No new oral evidence was called on his behalf. With the agreement of the respondent’s representative the Tribunal proceeded on the basis of a transcript of his evidence given in the first AAT hearing.[15] Some further reports from Writeway Research Service Pty Ltd were provided by the respondent.[16] Additionally two further reports from Dr Strauss, a psychiatrist, were filed[17] and Dr Strauss gave oral evidence for the respondent at the hearing. This Tribunal did not have the notes of Dr Murray Kingsley, the applicant’s treating doctor in Warrnambool after his (the applicant’s) discharge from the army, which were apparently provided to the Tribunal in the first AAT hearing.
[14] Exhibit A1.
[15] Appeal Book, pages 147-189.
[16] Exhibit R4.
[17] Exhibits R1 and R2.
The Applicant’s Background And Service History
4. The applicant was born on 28 July 1973. He is the youngest of three children and comes from a broken home where he was primarily cared for by his mother. The applicant described his father as an alcoholic.[18] He left school at the age of 15 years and undertook casual farm work. In the early 1990s he secured work in an abattoir. On 6 June 1998 he enlisted in the Australian Army Reserve with the intention of fulfilling a long expressed desire of subsequently joining the regular army.[19]
[18] Appeal Book, page 171.
[19] Exhibits R1 and R2.
5. In an interview on 29 October 1997 with a psychologist, undertaken to test the applicant’s suitability to join the reserve forces, he is recorded as saying he took alcohol on special occasions, smoked 20 cigarettes a day and had used drugs at age 16/17 years.[20] There was apparently no impediment identified, and the applicant was cleared to join the Army Reserve. There is no evidence that the applicant suffered any major illness or injuries prior to his enlistment.
[20] Appeal Book, page 308.
6. The applicant married in 2000. He and his wife have three children. He separated from his wife in 2003 and now lives with a partner. He apparently has experienced difficulties maintaining regular contact with his children – his wife at one stage succeeded in obtaining an intervention order restricting his access to them.
7. The applicant passed a medical examination conducted on 19 May 1999 for purposes of testing his suitability to join the regular army. He disclosed in his medical questionnaire that he smoked tobacco, drank alcohol,[21] and had experience with marijuana nine or 10 years before. He answered ‘no’ to a question asking if he suffered depression.[22]
[21] 20 to 25 drinks per week.
[22] Appeal Book, page 41.
8. On 11 June 1999 the applicant transferred to the Australian regular army. After qualifying as a rifleman grade 1, he was, on 30 July 1999, posted to the 2nd Royal Australian Regiment (2 RAR) and transferred to Townsville. After initial recruitment training he was remarked to have the potential to become a good soldier, if he concentrated. It was also recorded that he exhibited an indifferent attitude to training and was described as achieving “overall a marginal result with room for improvement.”[23]
[23] Appeal Book, page 315.
9. On 20 September 1999, 2 RAR was sent as part of the international peace keeping force to East Timor (INTERFET). The applicant was among the first troops sent to East Timor, and arrived during the time the Indonesian Army forces (the TNI) were still present. Despite earlier conflict with the East Timorese the TNI were, when the applicant arrived in East Timor, part of a dual operation with INTERFET to secure vital infrastructures in and around Dili.[24]
[24] Exhibit R4, page 2.
10. The applicant served in East Timor for five days before he fell ill with abdominal pain. He was initially treated in Dili by the regimental medical team. Arrangements were made to evacuate him to the Darwin General Hospital later that same day. He was diagnosed to be suffering from Shigella dysentery. Shigella is a treatable condition and the applicant made a full recovery with no ongoing medical sequelae, but did not return to East Timor. He was transferred to Townsville from Darwin on 6 October 1999.
11. On 10 May 2000 an army medical board determined to reduce the applicant’s fitness classification.[25] At that time his emotional stability was noted as being “abnormal” and that he was being seen by a psychologist for “anger, impulse control.”[26] Additionally he was awaiting orthopaedic review for bilateral ankle pain. The latter was apparently a condition which developed following his return from East Timor and is not part of this claim.
[25] Exhibit R4, enclosure 1.
[26] Exhibit R4, enclosure 1.
12. On 1 June 2000 the applicant saw an army psychologist, Mr Robert Zematis, who noted him to be “extremely frustrated by his current state and medical problems which don’t allow him to participate with his company … medically sent home from Timor … feels as if he has failed in his duties.”[27]
[27] Appeal Book, page 72.
13. On 2 June 2000 the applicant had the first of several meetings with Lt Rees, an army psychologist. The applicant was described as exhibiting symptoms of anxiety and depression. A number of symptoms were listed and the fact that the applicant was facing possible discharge from the army as the result of his ankle condition was said to be concerning him.[28] Lt Rees referred the applicant to Dr G McDonald who diagnosed “combat stress, depressed anxiety.”[29] Dr McDonald referred the applicant to Dr Green, a psychiatrist in private practise. Dr Green, as stated in paragraph one of these reasons, diagnosed the applicant as suffering post traumatic stress disorder (PTSD) and a major depressive disorder.
[28] Appeal Book, page 306.
[29] Appeal Book, page 50.
14. In what appears to be his final army medical examination carried out in August 2000 the applicant was diagnosed as suffering “major depression (2nd to PTSD), biomechanical problems with lower limbs …” [30] The applicant was classified as unfit for future military service and was discharged on 10 September 2000. He has not worked since his discharge. After his discharge he returned to his family in Warrnambool and commenced treatment from Dr Graham Ridley, a psychiatrist.
[30] Appeal Book, page 71. It is unclear from the notation on the record whether the date was 21, 24 or 28 August.
15. Further details concerning his pre and post discharge circumstances and the medical treatment he underwent are set out later in these reasons.
16. It is accepted, and the Tribunal is satisfied, that the applicant is a veteran and that he has rendered operational service. His claim is to be determined in accordance with ss 120 and 120A of the Act.
The Applicant’s Experiences In East Timor
17. On flying into East Timor the applicant recorded in his diary that he observed seeing a city (Dili) in flames and noted “When we got off the plane I wasn’t scared to the point off (sic) nervous break down but I was nervouse (sic) as hell.”[31] Upon disembarking he noted in his diary that the airport was “trashed …”[32] In his oral evidence the applicant described an event also noted in his diary, that is, TNI patrolling in trucks with rifles in a resting position.[33] He records that their presence made him feel vulnerable. The applicant said the Australian soldiers were ordered to treat the TNI with suspicion and avoid confrontation. In his oral evidence he stated that he felt “quite nervous” because the TNI guns, even while at rest, were pointing in his direction.[34] Interviews with the lieutenant and sergeant of his platoon record them as acknowledging the presence of the TNI militia but both stated that there were no untoward incidents and that there was no threat posed by them to the Australian troops.[35]
[31] Appeal Book, page 143.
[32] Appeal Book, page 143.
[33] Appeal Book, page 149.
[34] Appeal Book, page 150.
[35] Appeal Book, page 128.
18. While not recorded in his diary there was an incident which he described in his oral evidence as occurring within half an hour of his disembarkation when a shot was accidentally fired by an Australian soldier.[36] The applicant explained that this happened when the soldier had disassembled his rifle to clean it. He stated that this made him feel vulnerable, especially having regard to the presence of armed TNI soldiers on patrol.
[36] Appeal Book, page 149.
19. On his first night in Dili after his arrival he was part of group detailed to set up and man a vehicle checkpoint near the airport. He claims to have observed that he was standing in blood on one occasion during the night and that early the next morning he saw what he described as a shallow grave. He recorded in his diary that these sightings were “pretty scarey (sic).”[37]
[37] Appeal Book, page 144.
20. The next morning, during breakfast, he claimed he was frightened by a further unlawful discharge of a fellow Australian servicemen’s rifle. The applicant said in his evidence “If it [the gun] was pointing the other way the round would have come straight at us …”[38] He further confirmed his momentary fear would have arisen if the round had come from an Indonesian soldier’s weapon “going off and not one of ours.”[39]
[38] Appeal Book, page 163.
[39] Appeal Book, page 163.
21. After breakfast on 21 September he went on patrol. On the second night accommodation was secured in a double story house but the applicant records that he slept outside in order to provide protection for those inside. He noted in his diary that this was “unfair.”[40] On 22 September he was on patrol when heat exhaustion overcame him and he was taken to the RAP to recover. He was discharged the next morning. He next records patrolling in an armoured vehicle from where he described East Timorese returning from the mountains. He noted that they smiled and waved at the (Australian) soldiers. The next two days, 24 and 25 September 1999, he records as being uneventful. Thereafter, no more diary entries were made.
[40] Appeal Book, page 144.
22. On what appears to have been 26 September the applicant was the rear gunner in a patrol vehicle. While the vehicle was stationary he noticed a person walking across a field some 200 metres distant, carrying something, which the applicant could not positively identify, but which he concluded could have been a rifle. His orders were to open fire if threatened. He released the safety catch on his rifle and aimed it at the person. The person then turned away and disappeared from view. There was no need for the applicant to fire his gun. It is not known if the person saw, or was even conscious of, the presence of the patrol. There is nothing to suggest that the person at any time assumed a threatening stance towards the patrol. The applicant said when giving evidence during the course of the first AAT hearing that the incident had shaken him and “I could have – could have shot him … his life was in my hands and it made me – made me feel quite ill.”[41]
[41] Appeal Book, page 149.
23. The applicant recorded a further incident where he thought he smelt blood when patrolling in a house. Having worked in an abattoir he claimed to be familiar with the smell of blood.
24. The Tribunal accepts the applicant’s above description of his experiences in East Timor.
What Conditions (Or Symptoms) Are Suffered (Or Displayed) By The Applicant?
25. The applicant did not suffer any injuries while in East Timor. His claim therefore is limited to establishing which, if any, diseases he suffers or which symptoms of disease(s) he exhibits. Section 5D(1) of the Act relevantly defines ‘disease’ as follows:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
…
26. The first thing to determine is what, if any, conditions the applicant suffers or, if the Tribunal is unable to do that, then what symptoms he suffers which may be indicative of diseases.[42] The establishment of what possible conditions/ symptoms are suffered by the applicant is unrelated to and precedes any findings as to whether he satisfies the tests to be applied to those veterans with operational service as set out in Deledio.[43] Accepted diagnostic criteria are used to decide, on the balance of probabilities, this issue.
[42] Mines v The Repatriation Commission (2004) 86 ALD 62 per Gray J at 70-71.
[43] Repatriation Commission v Deledio (1998) 83 FCR 82.
27. If it is found that the applicant suffers from any disease then, relevantly, s 9 of the Act provides:
(1)… for the purposes of this Act, … a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the … disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the … disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)…
(d)…
(e)the … disease contracted, by the veteran:
(i) …
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the … disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran … contracted that disease;
but not otherwise.
28. From the totality of information before the Tribunal all the following conditions are relevant for consideration – PTSD, personality disorder (being either borderline personality disorder (BPD) or anti social personality disorder (APD)), depressive disorder, alcohol dependence or abuse and drug dependence or abuse. The diagnostic criteria for all of the identified conditions are to be found in DSM-IV-TR and the relevant SoPs are stated to be based on DSM-IV or DSM-IV-TR. Given this the Tribunal has consulted the source of the criteria – the DSM-IV texts. However, before doing that, it is convenient to set out the medical evidence from the examining medical practitioners. Details taken from the Austin medical records appear later in these reasons.
Dr Strauss
29. Dr Strauss examined the applicant and gave a detailed report, dated 8 May 2004,[44] to the respondent in which he diagnosed BPD as the primary diagnosis, as well as substance abuse disorder and major depression. Dr Strauss opined that the applicant did not suffer PTSD. At the time of his examination Dr Strauss had the reports of Drs Ridley and Edward Cole as well as the records from the Austin Hospital, all of which reported the applicant as suffering PTSD.
[44] Appeal Book, page 230.
30. In his evidence to this Tribunal Dr Strauss explained that BPD resulted in a reactive response to a person’s situational environment typified by affective instability involving erratic and often attention seeking, self destructive behaviour and intense episodic dysphoria (lowered mood).[45] Dr Strauss stated that the condition is often associated with major depression. Dr Strauss further stated that the applicant suffered episodic depression and that a separate diagnosis of major depression, secondary to BPD, was warranted.[46]
[45] Transcript, pages 59-60.
[46] Transcript, page 60.
31. Dr Strauss gave oral evidence to both AAT hearings. Dr Strauss, like the other medical practitioners who examined the applicant, held the view that the applicant joined the army in order to improve his life. In the opinion of Dr Strauss, the fact that physical impediments resulted in his early return to Australia and ultimately threatened his army career, led to the applicant experiencing uncertainty about his future. The applicant’s borderline personality condition made it difficult for him to deal with uncertainty and that, along with adverse factors relating to his family, resulted in him suffering stress.[47]
[47] Transcript, pages 56-58.
32. In his oral evidence at the first AAT hearing, Dr Strauss opined that the applicant lacked self understanding, that is, insight into his condition. As a result Dr Strauss took into account not only the history given by the applicant to him but also that given by the applicant to other professionals in order to arrive at an overall assessment. Dr Strauss pointed out that Dr Ridley did not have a complete history when he undertook his assessment. In Dr Strauss’ opinion, while there was an inter-relatedness between all three conditions[48] (drug/alcohol abuse, depression and BPD), a diagnosis of major depressive disorder, as a separate diagnosis from BPD, was warranted.[49] Dr Strauss was also of the opinion that the applicant suffered substance abuse (extending to both alcohol and cannabis) and that this was secondary to his personality and life experience difficulties and was connected to his East Timor service in the sense that the substance abuse was a way of coping with the depressive condition.[50] However, in his evidence to this Tribunal, in answer to a question asked by the Tribunal, the doctor proffered it as his opinion that “in this specific case, I would be satisfied to say that this man had a borderline personality disorder as a primary and only diagnosis, keeping in mind the other problems.”[51] The reference to “the other problems” is, in the context, a clear reference to the applicant’s depressive and substance abuse conditions. The Tribunal will return to these latter aspects later in these reasons.
[48] Appeal Book, page 219.
[49] Appeal Book, page 218.
[50] Appeal Book, page 219.
[51] Transcript, page 81.
33. In Dr Strauss’ opinion the applicant was not exposed to any stressor of the type which could give rise to PTSD. Dr Strauss was cross examined on the basis that he may not have taken sufficient account of the totality of incidents in which the applicant had been involved in East Timor and the subjective severity of the applicant’s reaction to those events. The Tribunal does not accept the assertions which formed the basis of this aspect of Dr Strauss’ cross examination as being a fact. It is evident from the detail contained in Dr Strauss’ report (particularly that dated 8 May 2004 under the sub heading ‘Experiences in Timor’ where all of the incidents relied on as constituting the stressors are stated[52]) that the doctor carefully considered the objective elements associated with the incidents and assessed the applicant’s subjective reaction to them. It is also apparent that Dr Strauss took into account the fact that other professionals had previously diagnosed the applicant as suffering PTSD before he concluded his opinion. Dr Strauss maintained his opinion when it was put to him that other medical specialists had concluded that the applicant suffered PTSD (for example, Dr Green).
[52] Appeal Book, pages 235-236.
34. In respect to the applicant’s alcohol intake, Dr Strauss stated that “there’s pretty strong evidence” that alcohol abuse had commenced prior to the applicant’s operational service.[53] The aspect of the applicant’s pre service alcohol abuse is discussed below.
[53] Transcript, page 59.
35. In his oral evidence to this Tribunal the doctor stated that he formed the view that the applicant returned from East Timor “feeling demoralised and upset, and then when the situation became apparent to him that he couldn’t go back to Timor, then the problems worsened … At the same time there were a number of problems going on in his personal life which augmented the situation psychologically.”[54] The problems in the applicant’s personal life were outlined by Dr Strauss as the applicant’s wife suffering depression, his seven year old child being diagnosed as suffering ADHD, there being another toddler at home and the imminent birth of a third child.[55] On this analysis a root cause of the applicant’s depressive illness is suggested as arising as the result of events which confronted the applicant after his return from East Timor rather than being associated with events which occurred while he was undertaking that service. This, in turn, raises the possibility that there is no connection between the applicant’s service and all, or some, of the diseases from which he suffers.
[54] Transcript, page 75.
[55] Transcript, page 58.
36. Dr Strauss had agreed both in examination in chief and cross examination in the first AAT hearing that the applicant’s experiences both in, and since his return from East Timor, had contributed to his depression.[56] Dr Strauss also agreed in cross examination in the first AAT hearing that drug and alcohol abuse were connected to his depression and were in part caused by the applicant’s East Timor service.[57] Thus, while Dr Strauss associated the depressive condition and his alcohol and drug conditions with the applicant’s circumstances after his return from East Timor, he maintained that the experience in East Timor also played a part in relation to the conditions.
[56] Appeal Book, pages 213 and 218 respectively.
[57] Appeal Book, page 219.
37. In two reports prepared by Dr Strauss for the current hearing he was asked to comment on the psychological effect of the physical disabilities experienced by the applicant after his return from East Timor. While Dr Strauss acknowledged an 18 month history of lower limb disfunction preceding June 2000, he thought the physical disabilities did not continue to play any part in the applicant’s current psychiatric condition.[58] The Tribunal notes that in his report prepared for the first AAT hearing Dr Strauss recorded the applicant suffering an ankle injury while undertaking physical training in Townsville after his return from East Timor.[59] In his subsequent report dated 9 October 2008,[60] Dr Strauss somewhat modified his previously expressed view and stated that the “significant physical problems .... probably in my opinion significantly contributed to the psychiatric problems he has had over the years since he left the Army. This is another factor in my opinion which has contributed to his depression and psychological problems.”[61]
[58] Exhibit R1.
[59] Appeal Book, page 234.
[60] Exhibit R2.
[61] Exhibit R2, page 3.
Dr Cole
38. Dr Cole examined the applicant and provided a report to the applicant’s solicitor dated 21 October 2003.[62] Additionally, Dr Cole gave oral evidence at the first AAT hearing by which time he had read Dr Strauss’ report of 8 May 2004. Dr Cole set out the events involving the applicant in East Timor. In respect of the incident involving the applicant aiming his rifle at the passing figure Dr Cole reported:
He had had nightmares about how close he had come to killing someone. They still troubled him almost every night. There had been others that started out as normal dreams and then suddenly he found himself back in East Timor. He had flashbacks that were triggered by the sights of trees, certain noises or the sight of a uniform. They were now less frequent than in the beginning, but for an instant he still felt as though he were back there.[63]
[62] Appeal Book, pages 221-226.
[63] Appeal Book, page 223.
This evidence is not consistent with what the applicant told the first AAT hearing about his dreams.[64] At that time the applicant explained his dreams in terms of a ‘James Bond’ film.
[64] Appeal Book, page 151.
39. Dr Cole opined:
The important thing is that the person perceives himself to be in danger of death or serious injury and that this perception was reasonably based, given the circumstances, even though it may later emerge that no such threat existed’.[65]
[65] Appeal Book, page 225.
Dr Cole stated that he differed from Dr Strauss on the PTSD diagnosis on the basis that the applicant had been psychologically tested prior to enlisting and was found to be fit. In Dr Cole’s opinion, if the applicant had a pre-existing emotionally based condition then that would be likely to be exacerbated by the stressors the applicant encountered when in East Timor.
40. In cross examination at the first AAT hearing Dr Cole conceded that he had approached the applicant’s examination on the basis that the applicant told him that PTSD had already been diagnosed and stated that he did not have the material at hand to check that diagnosis.[66] Dr Cole agreed in cross examination that the applicant had not provided any information regarding his reaction to the stressors,[67] was unaware whether the applicant was authorised to fire at a person, and that he assumed that in respect of that incident the applicant must have been in fear of his life.[68] The latter assumption is not confirmed by any evidence given by the applicant or anyone else. However, while Dr Cole opined that the applicant may have experienced trauma while in East Timor, he conceded that it was not of the type contemplated in the SoP dealing with PTSD and that, in a technical sense, the applicant did not meet the terms of that SoP.[69]
[66] Appeal Book, page 198.
[67] Appeal Book, page 196.
[68] Appeal Book, page 197.
[69] Appeal Book, page 200.
41. Dr Cole agreed that the applicant had symptoms consistent with the DSM-IV diagnosis of BPD.[70] Dr Cole stated that he had not considered BPD as a possible diagnosis when he examined the applicant.
[70] Appeal Book, page 206.
42. Dr Cole also conceded in cross examination that he accepted at face value the applicant’s statement that he (the applicant) had not been convicted of driving under the influence of alcohol. While vague as to the details, Dr Cole said he had been told by the applicant that he had used recreational drugs prior to his enlistment.[71]
[71] Appeal Book, page 204.
43. Dr Cole’s evidence is largely drawn on assumptions and the conclusion of another doctor that PTSD had been diagnosed, a diagnosis which Dr Cole accepted without himself undertaking such a diagnosis. Dr Cole assumed some matters, for example, that the applicant’s nightmares were of his experiences in East Timor and that when aiming his gun at the passing person the applicant was in fear of his life. As a consequence, the Tribunal was unable to attribute much weight to Dr Cole’s evidence.
Dr Ridley
44. Dr Ridley, a consultant psychiatrist, treated the applicant between 19 September and 27 November 2000 and provided a report to the respondent dated 1 December 2000.[72] Dr Ridley diagnosed major depression complicated by elements of PTSD. The elements of PTSD were described by Dr Ridley as persistent nightmares and a tendency to become increasingly socially isolated and avoidant.[73] Dr Ridley also diagnosed both alcohol and drug abuse and described the applicant’s use of both as “heavy …”[74] The applicant denied to Dr Ridley having any alcohol or drug problems before his posting to East Timor. Dr Ridley also commented “It … seem[s] to me extremely likely that [the applicant] was predisposed to the development of such conditions by what appears to me to be a naturally fairly isolative and potentially hostile personality.”[75]
[72] Appeal Book, pages 96-99.
[73] Appeal Book, page 98.
[74] Appeal Book, page 99.
[75] Appeal Book, page 99.
45. Dr Ridley saw the applicant again on 25 January 2001 and provided a report to the applicant’s then advocate dated 6 August 2001.[76] In the latter report Dr Ridley states that “vicarious exposure to trauma of a more or less persistent and chronic nature is well recognised as a potential causative agent for [PTSD] even though it may not strictly meet the operationalised criteria set up strictly for research purposes in the [DSM-IV] of mental disorders.”[77] The Tribunal is not able to accept this analysis by Dr Ridley. Among other things, it overemphasises the subjective element involved in the diagnosis of PTSD to the detriment of the objective finding which needs to be present. This aspect is apparent in the manner in which Dr Ridley approached his diagnosis of the applicant’s PTSD and it does not accord with the DSM-IV diagnostic criteria.
[76] Appeal Book, page 122.
[77] Appeal Book, page 123.
Other Medical Evidence
46. The Tribunal has examined the two volumes of clinical notes from the Austin Repatriation Hospital and entries from those notes have been included in these reasons. Additionally, notes taken by various doctors and psychologists who examined the applicant during his military service have been also taken into account.
Post Traumatic Stress Disorder
47. DSM-IV-TR introduces its discussion of PTSD in the following way:
The essential feature of Post traumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened or serious injury, or other threat to one’s physical integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate (Criterion A1). The person’s response to the event must involve intense fear, helplessness, or horror (or in the children, the response must involve disorganized or agitated behaviour) (Criterion A2).[78]
[78] Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, DSM-IV®-TR (DSM-IV-TR), page 463.
48. The issue is whether, on the balance of probabilities, the applicant experienced an exposure to an extreme traumatic stressor involving direct personal experience when he served in East Timor. The determination of what is constituted by an extreme traumatic stressor involves both objective and subjective elements. Objectively, the evidence must demonstrate an event which may reasonably be regarded as involving the type of trauma described. Subjectively, the person must in fact respond to the traumatic event with “intense fear, helplessness or horror.”[79] There are other criteria which govern the manner in which the objective and subjective elements are to be determined but in view of the decision reached by the Tribunal on the issue it is not necessary to consider them.
[79] DSM-IV-TR, page 463.
49. It is evident from what the applicant states that he did not experience, witness or confront an event involving actual death or physical injury. The applicant was involved in the following incidents which form the basis of his claim to be suffering PTSD:
(i)his conclusion that a passing figure approximately 200 metres away may have been an enemy which caused him to prepare to shoot with a view to killing that person; and/ or
(ii)two incidents involving accidental discharge of gun by other Australian soldiers; and/ or
(iii)he claimed to be threatened by the guns of the TNI pointing at him when in a resting position (presumably over the knees of the soldiers and in a horizontal position) when the TNI infantry men passed by in trucks; and/ or
(iv)seeing a shallow grave and seeing what he took to be blood on one occasion and smelling blood on another.
incident (i): prepared to shoot
50. Dr Cole gave evidence that the applicant told him that when on patrol in an armoured vehicle, he saw a person about 200 metres away, walking across his field of view.[80] In fact, the person in his view was so distant that the applicant could not discern whether the figure was holding a gun or a stick. Dr Green reported that the decision not to fire was made because the figure was too far away.[81] The only apparent source of Dr Green’s knowledge was what he was told by the applicant. If the figure was so far away that no purpose would be achieved by shooting at the figure then it follows that the figure was not in danger of being shot by the applicant. It follows that the basis of the applicant’s assertion that he held the life of the figure in is hands cannot be sustained. Whichever way it is approached, the event is not one which is capable of constituting an extreme traumatic stressor.
[80] Appeal Book, page 192.
[81] Appeal Book, page 135.
51. It could not be said that on those facts he was directly involved in an event in which another person was threatened with death or serious injury. There is no evidence, even from the applicant, which supports Dr Cole’s misplaced supposition given in his evidence at the first AAT hearing, that the applicant was in fear of his life from the figure.[82] The circumstance does not meet the requirement of being an extreme traumatic stressor of the type contemplated in DSM-IV-TR.
[82] Appeal Book, page 193.
incident (ii): accidental discharge of weapons
52. The next incident to consider is the accidental firing of guns by fellow Australian soldiers. The evidence is that this occurred on two occasions – once shortly after arrival in East Timor and again at breakfast on the second day. The applicant’s oral evidence was that the gun in the first incident was discharged when the applicant’s rifle was stripped down for cleaning. The applicant stated that he felt vulnerable because of the presence of TNI soldiers in the vicinity. There is no evidence that the applicant was objectively at risk. That he may have been subjectively so is not supported by the facts as he outlined them. As stated earlier, he had been briefed that the TNI were part of a joint exercise and while the INTERFET troops had been warned to be vigilant, there was no reason to suppose a single shot fired came from a TNI source.
53. The second incident is outlined in the applicant’s diary[83] and occurred when he was having breakfast on the second morning in East Timor. The applicant was speculating when he stated “If [the gun] was pointing the other way the round would have come straight at us …”[84] He further confirmed the speculation when he explained his momentary fear would have arisen if the round had come from an Indonesian soldier’s weapon “going off and not one of ours.”[85] Neither the firing of unauthorised shots nor the speculative thoughts of the applicant are such that they are objectively capable of constituting an extreme traumatic stressor of the type required in DSM-IV-TR.
[83] Appeal Book, page 144.
[84] Appeal Book, page 163.
[85] Appeal Book, page 163.
incident (iii): tni guns pointing at the applicant
54. The presence of TNI soldiers holding guns which were at rest in a horizontal position but pointing outside the back and/ or sides of the open trucks in which they were travelling, could not be objectively regarded as being capable of qualifying as an event which gives rise to trauma in the sense in which that term is described in DSM-IV-TR. The Tribunal accepts that the TNI had a history of violence against the East Timorese, but at the time of the applicant’s arrival in East Timor the TNI were there as part of a joint exercise with the Australian soldiers and were, as far as the INTERFET forces were concerned, not enemy soldiers. The applicant agreed that there had been briefings which outlined the relationship between the TNI and the INTERFET forces and that the situation was not one of hostility.[86] There was no objective threat being made by the TNI soldiers and no suggestion that the rifles were being aimed at Australian soldiers or indeed aimed at anyone. It is unknown if the rifles were even loaded. Any innuendo arising from Dr Green’s hand written report of 8 August 2001 where he reports that the applicant felt threatened by the TNI “pointing weapons … smiling …”[87] that there was an implied threat from the actions of the TNI is unable to be accepted by the Tribunal. The circumstances outlined by the applicant are not such that they could objectively be said to support a finding of exposure to an extreme traumatic stressor of the type required in DSM-IV-TR.
[86] Appeal Book, page 164.
[87] Appeal Book, page 134.
incident (iv): shallow grave and blood
55. The sighting of a patch of what may have been human blood on the roadway does not, without more (that is, the presence of an injured soldier or a body or knowledge that a soldier had been severely injured or killed at that point), objectively qualify as constituting an extreme traumatic stressor. The same applies to a smell which the applicant thought may be blood. In notes taken by Genesis consulting psychologists following an interview with the applicant on 8 May 2001, the applicant is reported as saying “sometimes it felt like I could smell blood. In one particular house the smell was real bad. Maybe it was blood.”[88] Subsequently, the applicant is recorded in the Austin Hospital notes as saying to Dr Simon Howard on 11 December 2001 that he “believed an atrocity had been committed [in the house].”[89] He is also recorded as saying that the floor was sticky, presumably relating that to blood associated with the smell. Even if there was a smell of blood and the sticky substance on the floor was blood, then it is speculative, in the absence of some confirmatory material, to associate it with the occurrence of an atrocity. The Tribunal is satisfied that the applicant’s evidence is equivocal as to whether what he smelt and experienced was blood and even, if so, there is nothing to suggest it was human blood. Even accepting that the applicant smelt and saw blood and that it was human blood, that by itself does not objectively qualify as exposure to an extreme traumatic stressor of the type contemplated in DSM-IV-TR criteria. The same is true concerning the applicant seeing a shallow grave – that, without more, cannot objectively sustain a traumatic stressor of the type identified in DSM-IV-TR.
[88] Appeal Book, page 264.
[89] Exhibit R5, Vol 1, page 16.
56. On one occasion when undergoing an assessment for admission to the Austin Hospital on 11 February 2003, the applicant is reported as saying that he saw dead bodies in East Timor.[90] This is the first and only time the Tribunal can ascertain that the applicant has mentioned this occurrence. His mention of it is long after his period of service. It is not recorded in his diary. If the event had occurred it could reasonably be expected that he would have mentioned it earlier and that, as with the incidents earlier outlined, he would have been likely to have commented on it on more than one occasion. The Tribunal is satisfied either there was a misreporting or, if correctly reported, that the applicant did not see dead bodies while in East Timor.
[90] Exhibit R5, Vol 1, page 198.
57. The Tribunal is satisfied that the applicant was not, in any of the circumstances outlined, exposed to an extreme traumatic stressor as required by DSM-IV-TR. Having reached that conclusion, the Tribunal is satisfied that the applicant does not meet the threshold diagnostic criterion to be considered to have PTSD. Because he does not qualify under the DSM-IV-TR criteria he is unable to qualify under the SoP which has adopted the DSM-IV-TR criteria.
recurrent dreams
58. There is an additional factor which precludes the applicant from succeeding on a claim for PTSD. One of the DSM-IV-TR criteria requires that the person must persistently re-experience the traumatic event in one of a number of different ways. One of the ways nominated is in having recurrent distressing dreams of the event.[91] The evidence of the applicant and that which he conveyed to Dr Cole is that he had recurrent frightening nightmares, particularly following his return from East Timor.[92] In his evidence at the first AAT hearing the applicant described his nightmares by association with a ‘James Bond’ film where he (the applicant) was looking down the barrel of a gun at the person but instead of the gun firing a bullet it spat razor blades which cut the applicant to pieces. He apparently gave no description of the subject matter of the dreams to Dr Cole because Dr Cole makes no mention of the content of any dreams.[93] Lt Rees, a psychologist, records the applicant as not suffering “flashbacks or feeling as though he is reliving his experiences in Timor.”[94]
[91] DSM-IV-TR, page 468, clause B(2).
[92] Appeal Book, page 223.
[93] Appeal Book, pages 222-226 and Transcript, pages 190-208.
[94] Appeal Book, page 305.
59. The association of the applicant’s dreams and nightmares to the events he experienced in East Timor is at best tenuous. The only association in the flash back was seeing a figure which appeared to be the person he had in his sights when on patrol. That person was at least 200 metres distant from the applicant and the applicant cannot have had any clear vision of the person. The fact that the figure in the nightmares ‘appeared’ to be a person he had in his sights raises doubts as to whether or not there is any connection to the incident earlier described. The evidence is not such that it leaves the Tribunal satisfied that the applicant experienced recurrent distressing dreams or flashbacks of an event he experienced in East Timor. The Tribunal is satisfied that any distressing dreams are based on something which the applicant may have seen in a film.
60. While there are mentions of ‘flashbacks’ in the Austin Hospital notes,[95] they are not accompanied by a description of what was contained in the flashback (except in one case where he is recorded as having a ‘flashback’ of being fired out of the barrel of a gun).[96] The Tribunal has not been able to take those references as advancing the applicant’s case that the flashbacks are related to the type of traumatic stressors envisaged by DSM-IV-TR.
[95] For example, see Exhibit R5, Vol 1, pages 231-233.
[96] Exhibit R5, Vol 1, page 359.
61. The Tribunal has reached the decision that the applicant does not suffer PTSD cognisant of the fact that Drs Green and Cole and the doctors at the Austin Hospital have all diagnosed the applicant as suffering PTSD. The Tribunal notes a qualification in Dr Green’s report where he wrote “It is a matter of opinion as to the degree of the stressor. In my opinion Mr Malady perceived Timor as being threatening …”[97] This is more descriptive of the fact that the applicant was in a war zone and that he felt threatened by that circumstance rather than the applicant being faced with a PTSD relevant stressor. Dr Ridley expressed his diagnosis as major depression complicated by elements of PTSD[98] rather than as a straight forward diagnosis of PTSD. The Tribunal also notes that Dr Ridley, in his subsequent report of 6 August 2001, seems to accept that under the current edition of DSM-IV the applicant would not qualify. The Tribunal is unable to accept Dr Ridley’s conjecture that the applicant may not have mentioned all of the stressors which he confronted. The determination of whether the applicant faced a stressor of the magnitude required to satisfy the DSM-IV-TR definition is, however, in the end a question of fact and not medical opinion. While medical opinion may assist in informing a question of fact, it cannot be determinative. Dr Strauss differed from the other medical practitioners, as he did not diagnose the applicant as suffering PTSD. The Tribunal agrees with Dr Strauss’ diagnosis on this point.
[97] Appeal Book, page 135.
[98] Appeal Book, page 98.
Personality Disorders
62. Given the Tribunal is satisfied that the applicant does not suffer PTSD then the next consideration is whether he suffers one or more personality disorders. Dr Strauss opined that the applicant suffered BPD. Psychiatrists, Drs Barbara Kulijewicz, Arthur Velakoulis, McDonald, and Howard at the Austin Hospital and a medical registrar, Dr Peter Chen, thought the applicant exhibited antisocial personality traits.[99] Dr R Bonwick, a psychiatrist called to give a second opinion when the applicant was a legally confined inpatient at the Austin Hospital, diagnosed “background of PTSD and/ likely antisocial PD [personality disorder].”[100] There are therefore two possible personality disorders to be considered – BPD and APD. DSM-IV-TR recognises 11 types of personality disorders and acknowledges the difficulties in distinguishing between those disorders where they fall within a cluster of disorders exhibiting similar manifestations. APD and BPD both fall within the one cluster. The Tribunal will first address whether the applicant suffers BPD.
[99] Appeal Book, pages 131 and 133, 94 and Exhibit R5, Vol 2, page 216 and Exhibit R5, Vol 1, page 25 respectively.
[100] Exhibit R5, Vol 3, page 109.
63. DSM-IV-TR provides the following general description of personality disorders:
Personality traits are enduring patterns of perceiving, relating to, and thinking about the environment and oneself that are exhibited in a wide range of social and personal contexts. Only when personality traits are inflexible and maladaptive and cause significant functional impairment or subjective distress do they constitute Personality Disorders. The essential feature of a Personality Disorder is an enduring pattern of inner experience and behaviour that deviates markedly from the expectations of the individual’s culture and is manifested in at least two of the following areas: cognition, affectivity, interpersonal functioning, or impulse control (Criterion A). This enduring pattern is inflexible and pervasive across a broad range of personal and social situations (Criterion B) and leads to clinically significant distress or impairment in social, occupational, or other important areas of functioning (Criterion C). The pattern is stable and of long duration, and its onset can be traced back at least to adolescence or early adulthood (Criterion D). The pattern is not better accounted for as a manifestation or consequence of another mental disorder (Criterion E) and is not due to the direct physiological effects of a substance (for example, a drug of abuse, a medication, exposure to a toxin) or a general medical condition (for example, head trauma) (Criterion F). Specific diagnostic criteria are also provided for each of the Personality Disorders included in this section. The items in the criteria sets for each of the specific Personality Disorders are listed in order of decreasing diagnostic importance as measured by relevant data on diagnostic efficient (when available).[101] Both of BPD and APD fall within DSM-IV cluster B which manifests in “disorders which often appear dramatic, emotional or erratic.”[102]
[101] DSM-IV-TR, page 686.
[102] DSM-IV-TR, page 685.
Borderline Personality Disorder
64. Dr Strauss was called by the respondent for the purpose of expressing an opinion on the PTSD claim. In doing so, Dr Strauss interviewed the applicant and diagnosed him as suffering from BPD. The latter is not a claimed condition. Given, however, it has been diagnosed the Tribunal felt it appropriate to address it if for no other reason other than this applicant’s claim has been such a length of time in consideration that it would be unfair not to do so. While it was Dr Strauss’ opinion that the BPD existed prior to the applicant’s operational service, he stated that “his psychiatric problems … became even more apparent after he was in Timor, and have continued … to trouble him ever since.”[103] Whether the doctor’s reference to “more apparent” is meant to be confirmatory as to the continuing nature of the condition or, whether it refers to an aggravation of the condition which may have existed before the applicant undertook service in East Timor, is unclear. The Tribunal is also conscious that Dr Strauss stated that “although [the applicant] may have had some psychological symptoms as a consequence of his time in Timor this in my opinion has not been the primary psychological process that has been taking place in this man’s psyche.”[104] The degree to which those psychological symptoms may have contributed to the applicant’s BPD was not specified.
[103] Transcript, pages 78-79.
[104] Appeal Book, page 247.
65. While s 14 of the Act requires a claim to relate to an ‘injury’ or ‘disease’ it does not require that the injury or disease be particularised. It is, however, necessary that both parties be given a fair opportunity to consider any differential diagnoses. The respondent has, in its submission, urged the Tribunal to accept Dr Strauss’ opinion that it was the applicant’s problems which arose as the result of the applicant feeling demoralised by not being able to return to East Timor which gave rise to any condition and that this was not, and could not be, connected to the applicant’s peacekeeping service.[105] For the reasons set out later, the Tribunal does not accept this proposition.
[105] See respondent’s submission, filed 22 October 2008, paragraphs 212-213.
66. DSM-IV-TR lists the following diagnostic criteria for BPD:
A pervasive pattern of instability of interpersonal relationships, self-image, and affects, and marked impulsivity beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following:
(1)frantic efforts to avoid real or imagined abandonment. Note: Do not include suicidal or self-mutilating behaviour covered in Criterion 5.
(2)a pattern of unstable and intense interpersonal relationships characterized by alternating between extremes of idealization and devaluation
(3)identity disturbance: markedly and persistently unstable self-image or sense of self
(4)impulsivity in at least two areas that are potentially self-damaging (e.g., spending, sex, substance abuse, reckless driving, binge eating). Note: Do not include suicidal or self-mutilating behaviour covered in Criterion 5.
(5)recurrent suicidal behaviour, gestures, or threats, or self-mutilating behaviour
(6)affective instability due to a marked reactivity of mood (e.g., intense episodic dysphoria, irritability, or anxiety usually lasting a few hours and only rarely more than a few days)
(7)chronic feelings of emptiness
(8)inappropriate, intense anger or difficulty controlling anger (e.g., frequent displays of temper, constant anger, recurrent physical fights)
(9)transient, stress-related paranoid ideation or severe dissociative symptoms[106]
[106] DSM-IV-TR, page 710.
67. Dr Strauss outlined the criteria in his report of 2004, noting that individuals with BPD are very sensitive to environmental changes and experience intense abandonment fears. Such people have the need to have people with them and in order to achieve this they exhibit impulsive actions and suicidal behaviours. There are numerous incidents of suicidal behaviour exhibited in the applicant’s Austin Hospital records and these are noted below. Dr Strauss opined that the applicant’s inability to continue in East Timor engendered a sense of failure and desolation in him and aggravated his psychological problems.[107]
[107] Appeal Book, page 261.
68. The relevant DSM-IV-TR diagnostic criteria are discussed below.
criterion (4): impulsivity
69. There are several incidents that demonstrate the applicant’s impulsivity and self-damage. On 12 June 2001 the applicant is recorded as having deliberately damaging his car in anger after becoming lost. He had driven repeatedly into a pole, smashing his car.[108] This constitutes reckless driving and places his safety at risk.
[108] Exhibit R5, Vol 1, pages 58 to 59.
70. On 11 September 2001, the applicant was admitted to hospital to undergo detoxification and anger management – the admission was a condition of his bail after being charged with robbery, intentionally causing injury, and assault.[109]
[109] Exhibit R5, Vol 1, page 30.
71. The Austin Hospital, on 15 April 2003, also notes that the applicant had been in an altercation while drunk on St Patrick’s day in a pub. He was subsequently charged with assault[110] and grievous bodily harm.[111]
[110] Exhibit R5, Vol 1, page 178.
[111] Exhibit R5, Vol 2, pages 108 to 109.
72. Additionally his excessive intake of alcohol and the taking of illicit drugs, both described elsewhere in these reasons, are potentially self damaging. It follows that the applicant’s circumstances meet criterion 4.
criterion (5): suicide
73. The first mention of suicide appears in the army medical notes of 2 June 2000 where the applicant is reported as saying to Dr McDonald he “considers car accident into tree” as a last resort[112] and on or about 6 June 2000 he is recorded as saying “suicide is a last resort …”[113] Dr Cole reports that the applicant “Occasionally felt that there was no point in living.”[114] Suicide attempts were made while the applicant was in the Repatriation Hospital – on 30 June 2001 (when he attempted to slash his wrists) and 12 September 2001.[115] Lt Rees reports the applicant as regarding “suicide is a last resort” and having a “belief about dying while asleep” (in June 2000)[116] and stating that he has the “feeling of wanting to drive off the road to kill himself”.[117] Following an argument with his wife the applicant is said to have threatened to shoot himself.[118] He is recorded as “talking about suicide [indecipherable] in shed.”[119] The Austin Hospital notes also record ”suicidal ideation” with the applicant saying “I am not discussing details … I have thought about it. I won’t discuss it.”[120] A note in the Austin Hospital records states that the applicant had been admitted to the Warrnambool Hospital and was having “thoughts of self harm …”[121] Dr Strauss notes “suicidal thoughts … strong sense of desperation.”[122] Dr Angelo Farrero, in discharge notes made on 21 July 2003, records “suicidal ideas of wanting to hang himself.”[123] On 13 May 2003 the Austin Hospital reports “suicidal ideation” in a period prior to a court appearance.[124] He is reported as having “suicidal ideas”[125] and as believing that his ex partner (which the Tribunal takes to be a reference to his wife) may, through their actions in the Family Court, drive him to harm himself.[126] A strategy for addressing self harm was discussed with him in April 2003.[127] On another occasion on 22 February 2003 the applicant spoke of hanging himself but told Dr Josephine McKeon at the Austin Hospital that he had not organised methods and “it was better to top myself than use drugs again.”[128] He is recorded as having “fleeting thoughts of self-harm” on 21 February 2003.[129] The applicant’s wife notified the Austin Hospital that the applicant said he was going to kill himself.[130] He is also recorded as saying he wanted to kill himself because his family are “better off” without him.[131] On 19 November 2003 he is recorded in hospital notes as having suicidal thoughts of “stringing himself up.”[132] Dr Geoffrey Hogan, a psychiatrist, noted the applicant as experiencing “frequent suicide thoughts.”[133]
[112] Appeal Book, page 50.
[113] Appeal Book, page 51.
[114] Appeal Book, page 224.
[115] Exhibit R5, Vol 1, pages 499 and 403 respectively.
[116] Appeal Book, pages 51-52.
[117] Appeal Book, page 304.
[118] Exhibit R5, Vol 1, page 28.
[119] Exhibit R5, Vol 1, page 51.
[120] Exhibit R5, Vol 1, page 52.
[121] Exhibit R5, Vol 1, page 95.
[122] Appeal Book, page 237.
[123] Exhibit R5, Vol 1, page 102.
[124] Exhibit R5, Vol 1, page 131.
[125] Exhibit R5, Vol 1, page 134.
[126] Exhibit R5, Vol 1, page 135.
[127] Exhibit R5, Vol 1, page 177.
[128] Exhibit R5, Vol 1, pages 235-236.
[129] Exhibit R5, Vol 1, page 233.
[130] Exhibit R5, Vol 1, page 497.
[131] Exhibit R5, Vol 1, page 462.
[132] Exhibit R5, Vol 2, page 5.
[133] Exhibit R5, Vol 2, page 39.
criterion (6): affective instability due to marked reactivity of mood
74. There are many entries in the Austin Hospital notes of the applicant experiencing times when he was “sullen” and “morose.”[134] At other times “lowered [indecipherable] affect”,[135] or “restricted affect”,[136] “flat” affect,[137] lowered mood,[138] “mood gruff”,[139] feeling quite dispirited disempowered and hopeless,[140] and mood improving but still low.[141] In accordance with the DSM-IV-TR criterion this lasts for a short period of time and resolves quickly.
[134] Exhibit R5, Vol 1, page 230 and Exhibit R5, Vol 2, page 114.
[135] Exhibit R5, Vol 1, page 10.
[136] Exhibit R5, Vol 2, page 1.
[137] Exhibit R5, Vol 2, pages 12, 61, 63.
[138] Exhibit R5, Vol 2, pages 63, 72, 115.
[139] Exhibit R5, Vol 2, page 116.
[140] Exhibit R5, Vol 2, page 121.
[141] Exhibit R5, Vol 2, page 123.
criterion (8): inappropriate intense anger
75. Dr McDonald noted, on 2 June 2000, that the applicant was easily angered and that he yells at his wife and both of his children.[142] He is also noted as acknowledging that he has suicidal thoughts when his anger is out of control.[143] Dr Strauss noted the applicant “remained very angry with his wife” and was involved in Family Court proceedings.[144] The Austin Hospital medical notes mention him being given anger management counselling.[145] Another notation in the Austin Hospital files records the applicant as becoming lost while leaving Melbourne in his car and getting “angry and threatening to smash car into poles.”[146] The same note records him as being taken to the Austin Hospital for medical assessment due to him “kicking [the] car whilst in rage.”[147] The records also disclose him becoming “angry and aggressive re waiting time”[148] and claiming to have a “fiery” mood.[149] On attendance at the hospital on another occasion (7 August 2003) he became abusive and made veiled threats (about how he would achieve being admitted), eventually he “stormed out … punching the door on the way …”[150] A note in the Austin Hospital file records him as being admitted to the Warrnambool Hospital crisis ward and records him as having punched holes in the walls and smashed a table while living at his mother’s home.[151] Dr Ferraro’s discharge notes made 21 July 2003 record “anger, especially towards ex-wife and police.”[152] Other notes record violent and aggressive thoughts and the applicant as being charged with threatened assault.[153] He is reported as expressing feelings of anger regarding his early life,[154] expressing racing thoughts and feelings of anger and feeling anger at a member of the nursing staff,[155] going to the gym to punch a punching bag as he felt like hitting the walls,[156] falling in the shower while at the Austin after punching himself in the head,[157] and feeling a strong desire to destroy property.[158] The records leave the Tribunal satisfied that the applicant suffers uncontrolled anger.
[142] Appeal Book, page 50.
[143] Appeal Book, pages 51 to 52.
[144] Exhibit R2, page 1.
[145] Exhibit R5, Vol 1, page 414.
[146] Exhibit R5, Vol 1, page 455.
[147] Exhibit R5, Vol 1, page 455.
[148] Exhibit R5, Vol 1, page 3.
[149] Exhibit R5, Vol 1, page 25.
[150] Exhibit R5, Vol 1, page 85.
[151] Exhibit R5, Vol 1, page 95.
[152] Exhibit R5, Vol 1, page 102.
[153] Exhibit R5, Vol 1, page 197.
[154] Exhibit R5, Vol 1, page 234.
[155] Exhibit R5, Vol 1, page 241.
[156] Exhibit R5, Vol 1, page 246.
[157] Exhibit R5, Vol 1, page 499.
[158] Exhibit R5, Vol 1, page 480.
criterion (9): transient stress related paranoia
76. On 2 June 2000 the applicant is noted by Dr McDonald as “not tolerating foods well …”[159] On 29 June 2001 the Austin Hospital noted him as saying that while he was out of the ward in the city he saw a group of Asians protesting and thought he heard someone saying his name.[160] That his name could have been mentioned given the short time he was in East Timor and in the absence of any evidence that the ‘Asians’ he saw demonstrating were East Timorese this suggests a paranoid episode. During the night of 29 June 2001 the applicant is reported as accusing staff of not caring for him and he became aggressive.[161] The Tribunal is satisfied that there is nothing to support him not being properly cared for while in the Austin Hospital and there would be no explicable reason for anyone to be following him. On 30 July 2001 he is reported as feeling he was being constantly followed.[162]
[159] Appeal Book, page 49.
[160] Exhibit R5, Vol 1, page 496.
[161] Exhibit R5, Vol 1, pages 492-494.
[162] Exhibit R5, Vol 1, page 429.
77. From the surrounding circumstances in each of the three examples, it is apparent that the applicant appeared to be in a psychotic state. In another entry dated 17 April 2003 there is a note that the applicant felt that the paranoid ideas had lessened,[163] it being earlier noted that he felt people were talking about him. A report of 15 April 2003 notes him as being anxious and thinking “people might be after him.”[164] An entry dated 29 August 2003 states that he mistrusts and feels persecuted by the staff of the Austin Hospital.[165] On 2 June 2003 he is recorded as having paranoid ideas but these were not clearly delusional.[166] Also on 2 June 2003, while an inpatient at the Austin Hospital and while in seclusion and receiving special treatment from Dr Ferraro, the records show the applicant as feeling “increasingly unsafe” and “wondering whether his food was poisoned, which could be accounting for his symptoms.”[167] Dr Ferraro earlier noted the applicant as having “persecutory ideas of people out to harm him, though was unable to elaborate.”[168] It was also noted that on one admission to the Austin Hospital that the applicant was experiencing “persecutory feelings – feels people he knows may be plotting against him …”[169]
[163] Exhibit R5, Vol 1, page 182.
[164] Exhibit R5, Vol 1, page 171.
[165] Exhibit R5, Vol 2, page 108.
[166] Exhibit R5, Vol 2, page 217.
[167] Exhibit R5, Vol 2, page 213.
[168] Exhibit R5, Vol 1, page 150.
[169] Exhibit R5, Vol 1, page 160.
78. Five of the criteria are met by the applicant’s circumstances. The evidence leaves the Tribunal satisfied on the balance of probabilities that the applicant suffers BPD.
Alcohol And Drug Abuse
79. The Tribunal must now consider whether the applicant suffers from substance dependence or abuse disorders.[170] In general terms DSM-IV-TR sets the following criteria for substance abuse:
[170] DSM-IV-TR, page 191.
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 fulfill 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)[171]
…
[171] DSM-IV-TR, page 199.
80. The applicant’s case is put on the basis that he suffers from abuse from alcohol and drug (largely cannabis) abuse rather than dependence.
81. The requirements in DSM-IV-TR for a finding of both alcohol and drug abuse conditions require that ‘dependence’ be excluded before consideration is given to whether ‘abuse’ exists. DSM-IV-TR sets out seven generalised criteria of which at least three must be satisfied before a finding of ‘substance dependence’ can be made.[172] While the evidence supports the applicant as increasing his intake of both alcohol and cannabis after his return from East Timor, it does not suggest this was to overcome a rising tolerance to either. The reason for the increase was stated to be to overcome memories of what happened in East Timor (criterion 1). There is no evidence, or no sufficiently convincing evidence, that he suffered withdrawal symptoms (criterion 2). Nor is there evidence of him taking alcohol/ cannabis in greater quantities or over a longer period than intended – no intention of limiting the quantity or a time limit for the taking of either cannabis or alcohol was ever suggested (criterion 3).
[172] DSM-IV-TR, page 197.
82. There was evidence of persistent and unsuccessful attempts to control both his alcohol and cannabis intake (criterion 4) and evidence that his activities were curtailed because of his substance abuse (criterion 6). The other remaining criteria mentioned in DSM-IV-TR are not fulfilled. There is no evidence of time spent on activities necessary to obtain alcohol (criterion 5). While it may be asserted that the applicant must have come to appreciate that his continued substance use, despite knowledge of persistent or psychological problems (criterion 7), that is not the only explanation open. He thought that by taking cannabis he was controlling his unpleasant thoughts about East Timor and promoting a better sleep pattern. Moreover, the evidence establishes that the applicant suffered an undiagnosed BPD condition and there is no evidence that his alcohol or cannabis intake was either the cause of or exacerbated this condition, thus not permitting a finding that the applicant ‘knew’ of the existence of a ‘psychological problem’.
83. Moreover ‘abuse’ is what the applicant claims and ‘abuse’ is the overwhelming diagnosis of most of the psychiatrists who examined the applicant.[173] Dr Cole said the applicant was overcoming his suffering from both alcohol abuse and dependence.[174] However, the overwhelming weight of the evidence points to the applicant suffering ‘abuse’ rather than ‘dependence’. The evidence leaves the Tribunal satisfied that the applicant does not suffer alcohol dependence.
[173] Appeal Book, pages 98, 132, 133, 249.
[174] Appeal Book, page 225.
84. The evidence, as outlined above, leaves the Tribunal satisfied that the applicant has failed to fulfil his major role obligations at home and, since he has not worked since returning from East Timor, also at work.
85. The applicant, in his evidence in chief at the first AAT hearing, stated that he was a troublesome youth and that he drank alcohol and smoked cannabis before enlisting but that he did not begin drinking heavily until after he returned from East Timor.[175] In cross examination he agreed that he had “occasionally” got drunk at weekends before enlistment but stated he had no intentions of turning out like his father who he said was an alcoholic.[176] The applicant denied that the driving offences committed in 1994 were alcohol related but agreed unrelated charges occurring in 1987, involving wilful damage and drunk in public, were alcohol related. The applicant’s police record discloses a series of convictions for offences against the police for which he was convicted in the Warrnambool Magistrates’ Court on 1 May 1995 and the convictions include one for being drunk in public place.[177] In an answer to questions recording the applicant’s medical history on 19 May 1999, it is stated that he had 20-25 drinks per week and had “tried marijuana 9-10 years ago.”[178]
[175] Appeal Book, pages 152-153.
[176] Appeal Book, page 171.
[177] Appeal Book, page 313.
[178] Appeal Book, page 42.
86. In an interview conducted by a medical practitioner at Warrnambool on 11 December 2001 (apparently by Dr Howard) the applicant is recorded as having “…past polysubstance abuse … he has managed to cease substance abuse …”[179] Given that 2001 was within two years of his return from East Timor and given that the Tribunal accepts the evidence that the applicant increased his drug and alcohol abuse after his return, the reference to ‘the past’ ought be taken to be a reference to the period between adolescence and enlistment.
[179] Exhibit R5, Vol 1, pages 23-24.
87. In an interview with a psychologist, Dr M Peek, from the Austin Hospital on 10 September 2003 the following is recorded:
started binge drinking from age 13-14 yrs. Parents couldn’t do anything to stop him drinking, out of control
…
Cont binge drinking – usually drank fri/sat nights
…
Initial use of alcohol to forget about what was happening at home, viz divorcing, & bullying by older bro
Parents’ separation meant he was different from other people, was insulted and bullied at school.[180]
[180] Exhibit R5, Vol 2, pages 15-16.
88. In respect of his use of cannabis the following is recorded:
experimented first from age 14. Smoked it whenever available. Got into it after return from Timor – prevented him remembering dreams. Used a bong at this stage. Spending $250-300/week.[181]
[181] Exhibit R5, Volume 2, page 15.
89. Two months later, on 10 December 2003, the same psychologist recorded the applicant as saying that he commenced drinking by taking some ‘stubbies’ from the refrigerator at home at the age of 10 years, that he subsequently acquired alcohol though a friend of the same age and drank in the park, that the alcohol loosened his inhibitions and led to him being involved in various misdemeanours with a group of other boys. The interviewer recorded:
Believe he used alcohol to escape from v unhappy home life, esp after mother acquired a boyfriend.[182]
[182] Exhibit R5, Volume 1, page 1.
90. The above records clearly refer to the applicant’s pre operational service history.
91. The applicant admitted to Dr Strauss that after his discharge from the army he became a heavy drinker and that he abused “drugs particularly cannabis and amphetamines.”[183] The applicant has received both psychological and psychiatric help for his alcohol and drug abuse at the Austin Hospital commencing in June 2001 where, among other things, polysubstance abuse was diagnosed. He was admitted to the Austin Hospital between 3-17 September 2001 for detoxification from illicit substances, predominately cannabis.[184] On 19 September 2000 Dr Ridley reported to the applicant’s general medical practitioner that the applicant “should try and leave the cannabis alone as much as possible and that he needs to fairly drastically reduce his drinking.”[185] That does not seem to have occurred and Dr Ridley reported on 6 August 2001 that the applicant had increased his alcohol and drug intake excessively in order to reduce the psychological arousal of the events he experienced in East Timor.[186]
[183] Appeal Book, page 234.
[184] Appeal Book, pages 131-132.
[185] Appeal Book, page 281.
[186] Appeal Book, page 289.
92. In order to be satisfied, on the balance of probabilities, that the applicant suffered the conditions prior to his operational service there must be evidence which leaves the Tribunal feeling “an actual persuasion of its … existence” of a fact and that “reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect references”[187] before it can safely arrive at a conclusion. In this case, the Tribunal can see no reason to doubt the authenticity of the record of what the applicant said to Dr Peek. Dr Peek, a psychologist, was professionally treating the applicant and, while the Tribunal notes that the applicant had lodged an application with the respondent in 2000 and the Austin Hospital is a repatriation hospital, there is nothing to suggest that the practitioners from the Austin Hospital had any other interest other than to properly treat and assist him. While the applicant has proved that he is not always an accurate historian, there is no reason not to accept that he was not telling Dr Peek the truth about his substance intake history. While others who have treated the applicant have commented on his reticence to reveal details of his pre enlistment behaviour, and despite his denial when giving evidence to the first AAT hearing of heavy involvement with alcohol and drugs prior to his operational service, what has been recorded is consistent with him experiencing substance abuse prior to his enlistment. It also accords with the opinion of Dr Strauss that this was likely to have been the case.
[187] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 per Dixon J.
93. The Tribunal is satisfied that the applicant meets the DSM-IV-TR criteria for both alcohol and drug abuse. The Tribunal is satisfied that he does not suffer alcohol or drug dependence.
Major Depressive Disorder
94. DSM-IV-TR defines major depressive disorder by reference to two linked categories – single episode and recurrent. Recurrent refers to two or more separate single episodes occurring at least two months apart. The DSM-IV-TR criteria for major depressive disorder episode are relevantly:
A.Five (or more) of the following symptoms have been present during the same 2-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure.
Note: Do not include symptoms that are clearly due to a general medical condition, or mood-incongruent delusions or hallucinations.
(1)depressed mood most of the day, nearly every day, as indicated by either subjective report (e.g., feels sad or empty) or observation made by others (e.g., appears tearful) …
(2)markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by either subjective account or observation made by others)
(3)significant weight loss when not dieting or weight gain (e.g., a change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day …
(4)insomnia or hypersomnia nearly every day
(5)psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down)
(6)fatigue or loss of energy nearly every day
(7)feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick)
(8)diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others)
(9)recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide.
…
C.The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
D.The symptoms are not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition (e.g., hypothyroidism).[188]
…
[188] DSM-IV-TR, page 356.
criterion (4): insomnia
95. There is evidence of insomnia.[189] The applicant told Dr Ridley that his sleep “became persistently disturbed, and that he would find it increasingly difficult to initiate sleep and would wake up at regular intervals throughout the night.”[190] Outpatient notes of 2 June 2000 record “poor sleep”[191] and he is recorded as being admitted between the 2-5 June 2000 “to improve his sleeping.”[192] He was admitted while on leave because he was “not sleeping properly”[193] and he was “sleeping poorly but not overly distressed by this.”[194] The applicant, in his evidence, stated that he took cannabis initially and then amphetamines to assist him in sleeping.[195] Austin Hospital records disclose him as having poor sleep[196] as well as “excessive sleeping” (that is, 14 out of 24 hours),[197] and difficulty going back to sleep at 2:00 am.[198] The Tribunal is satisfied that the difficulty that the applicant experienced in sleeping was a constant from at least June 2000 onwards.
[224] See SoP No 5 of 2008 relating to PTSD.
126. There was clearly no appropriate clinical management available for him in the days he served in East Timor. There is no evidence that he needed clinical management for the condition while in East Timor. Since his return to Australia he has had access to such clinical management. The fact that the management, whether through a privately operating psychiatrist such as Dr Ridley or through the facilities at the Austin Repatriation Hospital may not have successfully or permanently been able to resolve his condition, is not the point. The point is that he has been able to obtain what must be regarded as appropriate clinical management for his condition.
127. The Tribunal is satisfied that the applicant does not meet either of the factors required to be present in order to satisfy the connection between his East Timor service and his personality disorder. The applicant is therefore unable to meet the terms of the then governing SoP.
128. The applicant cannot succeed in a claim for BPD.
Alcohol Abuse
129. SoP No 76 of 1998 is the SoP in force at the time the delegate reached his decision. It was replaced by No 1 of 2009. The Tribunal must first consider the latter SoP.
130. Clause 3 of SoP No 1 of 2009 defines ‘alcohol abuse’ as follows:
"alcohol abuse" means a psychiatric condition that meets the following diagnostic criteria (derived from DSM-IV-TR):
A.A maladaptive pattern of alcohol 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 alcohol use resulting in a failure to fulfill major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to alcohol use; alcohol-related absences, suspensions, or expulsions from school; neglect of children or household).
(2)Recurrent alcohol use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by alcohol use).
(3)Recurrent alcohol-related legal problems (e.g., arrests for alcohol-related disorderly conduct).
(4)Continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the alcohol (e.g., arguments with spouse about consequences of intoxication, physical fights).
B.The symptoms have never met the criteria for alcohol dependence.
The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse.
131. The applicant has been admitted to the Austin Hospital for detoxification from alcohol abuse. He has not worked since he ceased service with the army and his relationship with his children appears to have had become remote and he has minimal contact with them. There is no or no sufficient evidence which leaves the Tribunal satisfied that he suffers alcohol dependence. The applicant appears to experience (alcohol) related legal problems, having twice being convicted of driving under the influence of alcohol, and he has a pre service history of alcohol related offending starting when he was an adolescent and others latterly which have resulted in criminal assault charges being proffered following hotel brawls. Additionally, he has both recurrent social and interpersonal problems associated with his taking of alcohol.
132. The fourth factor nominated in clause A of the definition would seem to be the most appropriately relevant to the applicant’s circumstances. There are examples where the applicant is reported as admitting he gets into physical fights at hotels following drinking alcohol. He therefore meets the definition.
133. Only factors (g) to (m) of clause 6 of the SoP are relevant because the Tribunal is satisfied that the applicant suffered alcohol abuse prior to his enlistment and the only issue is whether his service contributed to it in a material degree or aggravated it (s 9(1)(e)(ii) of the Act). Of those factors the only relevant one is clause 6(g), that is, the applicant having a psychiatric condition at the time of the clinical worsening of the alcohol abuse. In the case of the alcohol SoP a ‘clinically significant psychiatric condition’ extends to an Axis I or Axis II mental health disorder sufficient to warrant on going management which may involve visits to a psychologist or medical practitioner once every month. The applicant suffered BPD which is an Axis II category condition. Therefore, subject to there being evidence which establishes the condition warranted ongoing management and his alcohol abuse worsened as the result of his eligible service experience, he would qualify.
134. A diagnostic feature of BPD is that it starts in early adulthood.[225] While not manifest until the applicant was either in East Timor or shortly after his return the Tribunal accepts the evidence of Dr Strauss that the condition was present. The condition was not diagnosed until Dr Strauss saw the applicant in May 2004. There is no evidence which supports the concept in 2000, accepting the evidence which suggests an increased use of alcohol from that time, the condition then warranted ‘ongoing management’ at a level contemplated in the definition. The applicant does not meet the template set out in the SoP.
[225] DSM-IV-TR, page 706.
135. While there is ample evidence that the applicant’s alcohol abuse increased after his return to Australia from East Timor, the evidence does not support him as being able to satisfy the definition of ‘clinically significant psychiatric condition’ contained in clause 9 of the SoP. It follows that the applicant is unable to meet the template of the current SoP.
136. The next question is does he meet the template of any SoPs in existence at the time, or since, the delegate made his/her decision? There are two such SoPs – No 17 of 2008 and No 76 of 1998. The SoP most favourable to the applicant is No 76 of 1998. That is the SoP which the Tribunal has decided it will consider and will only consider No 17 of 2008 if the applicant fails to meet the earlier SoP. Clause 2(b) of the 1998 SoP defines alcohol abuse as follows:
“alcohol abuse” means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.
The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows
A.A maladaptive pattern of alcohol 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 alcohol use resulting in a failure to fulfil major role obligations at work, school, or home
(2)recurrent alcohol use in situations in which it is physically hazardous
(3)recurrent alcohol -related legal problems
(4)continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol
B.The symptoms have never met the criteria for alcohol dependence.
The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse.
Alcohol dependence or alcohol abuse attracts ICD-9-CM code 303 or 305.0.
137. For the same reasons expressed with respect to the applicant not suffering alcohol dependence under the 2009 SoP he does not also so suffer under the 1998 SoP which also defines ‘dependence’ by reference to the same seven manifestations. The issue then is whether his circumstances match any of the required factors which are set out in clause 5. Since the Tribunal has already decided that the applicant suffered alcohol abuse prior to undertaking operational service the only factors relevant to consider are those dealing with his service either making a material contribution to, or aggravating his pre-existing condition. These are dealt with in clauses 5(c) to (e). Subclause (c) is relevantly as follows:
suffering from a psychiatric disorder at the time of the clinical onset worsening of alcohol dependence or alcohol abuse …
138. Clause 8 defines ‘psychiatric disorder’ to mean any mental health disorder attracting an Axis I or Axis II diagnosis under DSM-IV. The DSM-IV is defined to be a reference to the fourth edition. Personality disorders including BPD is listed as an Axis II disorder.[226] Since the Tribunal accepts Dr Strauss’ evidence that the applicant’s BPD was present from early adulthood then as at early 2000 when he was aged 26 years the Tribunal is satisfied that he qualifies under the SoP, subject to a finding that his alcohol abuse worsened at that time (that is, 2000).
[226] Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, DSM-IV, fourth edition, (DSM-IV), page 27.
139. For the alcohol abuse to be the subject of ‘clinical worsening’ there must be evidence of a clinician supporting such a finding. It is not enough that the applicant asserts that his alcohol abuse increased following his return from East Timor, albeit that he is supported by his wife.[227] Dr Ridley noted the applicant’s major depression and PTSD as being “complicated by clinically significant alcohol and cannabis abuse.”[228] He also recorded both abuses as “escalating” (something he confirmed in a subsequent report dated 6 August 2001) and expressed difficulty in having the applicant submit to treatment for these conditions.[229] Dr Ridley made a connection between the applicant’s increasing substance abuse and his operational service. The evidence leaves the Tribunal satisfied that there was a clinical worsening of his alcohol abuse at that time. The Tribunal is satisfied that the applicant’s alcohol abuse was aggravated by his service.
[227] Appeal Book, page 239.
[228] Appeal Book, page 98.
[229] Appeal Book, page 124.
140. On the evidence before the Tribunal the applicant meets the SoP template and accordingly there is a connection between his alcohol abuse and his service.
Drug Abuse
141. The current SoP is No 3 of 2009. Drug abuse is relevantly defined in clause 3(b) as follows:
"drug abuse" means a psychiatric condition that meets the following diagnostic criteria (derived from DSM-IV-TR):
A.A maladaptive pattern of drug 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 drug use resulting in a failure to fulfill major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to drug use; drug-related absences, suspensions, or expulsions from school; neglect of children or household).
(2)Recurrent drug use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by drug use).
(3)Recurrent drug-related legal problems (e.g., arrests for drug-related disorderly conduct).
(4)Continued drug use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the drug (e.g., arguments with spouse about consequences of intoxication, physical fights).
B.The symptoms have never met the criteria for drug dependence for this class of drug.
The definitions for drug dependence and drug abuse exclude acute drug intoxication in the absence of drug dependence or drug abuse.
142. The applicant is reported as using marijuana – as well as amphetamines –including moving to taking the latter by injection rather than orally. Both substances are ‘drugs’ as defined in clause 9 of the SoP. While there were attempts to curb his abuse of drugs, these have been met with only temporary abstinence. Drug abuse is determinable only if a veteran does not suffer drug dependence. Clause 3(b) of the SoP sets out the tests to determine if a person has drug dependence. In order to meet the dependence definition a veteran must suffer at least three manifestations of the seven listed. They are as follows:
(1)Tolerance, as defined by either of the following:
(a) a need for markedly increased amounts of the drug to achieve intoxication or desired effect; or
(b) markedly diminished effect with continued use of the same amount of the drug.
(2)Withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for the drug; or
(b) the same (or a closely related) drug is taken to relieve or avoid withdrawal symptoms.
(3)The drug 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 drug use.
(5)A great deal of time is spent in activities necessary to obtain the drug (e.g., visiting multiple doctors or driving long distances), use the drug or recover from its effects.
(6)Important social, occupational, or recreational activities are given up or reduced because of drug use.
(7)The drug 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 drug (e.g., current cocaine use despite recognition of cocaine-induced depression).
143. There is no, or no sufficiently, convincing evidence that he had developed any tolerance, suffered withdrawal symptoms, was compulsively using the drug, was taking increased amounts of the drug to achieve intoxication (as distinct from taking the drug more often) or that there was any period he had determined as to when he would cease using drugs (that is, so that it could be open to determine he had exceeded that period). There is no evidence to suggest that he spent a great deal of time in obtaining the drugs or recovering from their effects. Finally, rather than the drugs causing or exacerbating psychological problems he claims that taking them relieves such problems.
144. The applicant continued to use drugs despite not being able to work and suffering a breakdown in his family – particularly in not having contact with his children. He has not worked and therefore not been able to support his family. These circumstances (that is, not working and failing to support his children) occurred on a continuous basis in excess of a 12 month period following his return from East Timor. Consequently he meets the definition of drug abuse found in clause 3(A)(1) of the SoP.
145. Clause 6 of the SoP sets out the criteria, which if at least one is fulfilled, will result in the existence of a reasonable hypothesis connecting his service to his drug abuse. Since the Tribunal is satisfied that the applicant abused drugs before his operational service commenced then only the circumstances from (h) to (n) need be considered. Of these only one is relevant – clause 6(h), that is, having a clinically significant psychiatric condition at the time of the clinical worsening of his drug abuse. The term ‘clinically significant psychiatric condition’ is defined in clause 9 to mean among other things any Axis II disorder attracting a diagnosis under DSM-IV-TR. BPD is an Axis II disorder under DSM-IV-TR. The applicant’s circumstances therefore satisfy the factor provided. For the same reasons expressed with respect to why the applicant did not satisfy the similar definition in the alcohol abuse SoP, he does not meet it in the drug abuse SoP. It cannot be known whether the condition warranted ‘ongoing management’ in 2000 when his cannabis intake escalated. He cannot meet the terms of the current SoP.
146. The definition of drug abuse is also relevantly the same in the 1998 SoP as in the 2009 SoP. For the same reasons the Tribunal accepts that the applicant suffers drug abuse. For the same reasons as expressed with respect to the alcohol SoP the Tribunal has first turned to SoP No 78 of 1998 rather than to SoP No 15 of 2008. The distinction between drug dependence and drug abuse is determined by reference to the same seven criteria as are set out in SoP No 3 of 2009. For the same reasons the Tribunal is satisfied that under the 1998 SoP the applicant does not suffer drug dependence.
147. Clause 5(d), being one of the factors which the applicant must meet is the same as in the alcohol SoP where ‘drug’ is substituted for ‘alcohol’. Similarly the definitions of DSM-IV and ‘psychiatric disorder’ are in the same terms. For the same reasons therefore the applicant satisfies the template for drug abuse subject to it being established that there has been a clinical worsening of his condition. The evidence from Dr Ridley covers both alcohol and drug taking by the applicant. It constitutes the necessary clinical evidence to leave the Tribunal satisfied that the applicant’s drug intake escalate in 2000 and that his circumstances meets the 1998 SoP template. Accordingly, there is a connection between his service and his aggravated drug abuse.
148. The final question is whether there is evidence sufficient to satisfy the Tribunal beyond reasonable doubt that the claims for an aggravation of his alcohol and drug abuse should be declined. The Tribunal can see no reason why the claims should be declined.
Major Depressive Disorder
149. The term ‘major depression’ is used in the current SoP as being constituted by ‘a major depressive episode’ or ‘recurrent major depressive disorder’ (clause 3 of No 27 of 2008). In order to qualify for ‘recurrent major depressive disorder’ there must be a period of at least two consecutive months between single episodes in which the stated criteria are not met. It is unclear from the SoP (and the DSM-IV-TR diagnostic criteria) whether the reference is to an absence of all or only some of the criteria being absent in the two month period. Common sense would suggest it is likely to be an absence of sonly some of the criteria. A reading of the applicant’s Austin Hospital clinical notes leaves the Tribunal satisfied that many but not all of the applicant’s symptoms were continuous.
150. A ‘major depressive episode’ can only exist if the symptoms do not meet those applicable to a ‘mixed episode’ (see clause B under the definition of ‘major depressive episode’). Curiously, the SoP does not provide any definition of what is constituted by a ‘mixed episode’. In the absence of a definition the Tribunal has had regard to the DSM-IV-TR definition which defines the term by reference to criteria for both ‘manic episode’ and ‘major depressive episode’ being met. Not any of the criteria for ‘manic episode’ as set out in DSM-IV-TR were evident in the symptoms exhibited by the applicant nor did any psychiatrist report the presence of such symptoms.[230] The evidence supported the applicant’s symptoms as causing clinically significant distress in his ability to function with his wife and children as well as standing in his way from returning to any form of work post his discharge (thereby meeting clause C). There is no evidence of depressive disorder resulting from his substance abuse or dependence (clause D). There has been no death which would account for the depressive disorder symptoms (clause E). Clauses A and B in the definition of ‘recurrent major depressive disorder’ have no applicability in this case.
[230] DSM-IV-TR, page 362.
151. It follows that the Tribunal is satisfied that the applicant meets the SoP definition as suffering a ‘recurrent major depressive disorder’.
152. The next step is to determine whether one of the factors in clause 6 of the SoP exists. If so, then the applicant’s depressive disorder will be connected to his operational service. There are 12 factors nominated in clause 6(a). It is convenient to look to the most likely applicable factor and that is clause 6(a)(vii) – whether the applicant has a clinically significant psychiatric condition within the two years before the clinical onset of his depressive disorder.
153. The term ‘clinically significant psychiatric condition’ is term defined in clause 9 of the SoP to mean:
… any Axis I disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;
Since the Tribunal is satisfied that the applicant suffers both alcohol and drug abuse, discussed below, he suffers from DSM-IV-TR categorised Axis I conditions of ‘substance abuse’.[231] The definition in the SoP refers to Axis I condition “sufficient to warrant ongoing management, which may involve regular visits …” The applicant has received treatment for his substance abuse on more of an intermittent than a regularised basis. Nevertheless, his condition is such that it is sufficient to warrant ‘ongoing management’ and has not resolved to the extent that the applicant has been able for instance to return to work. The Tribunal has also accepted the evidence of Dr Strauss, which confirmed the applicant’s statements to Dr Peek, that it is likely that the applicant commenced suffering from substance abuse prior to the commencement of his service. He meets the elements required to be met in order to satisfy the requirements of the factor.
[231] DSM-IV-TR, pages 27 to 28.
154. The final step, which involves an assessment of the evidence, is whether any of the accepted hypotheses are displaced and this is to be determined beyond reasonable doubt. The Tribunal has already determined that it is satisfied that the applicant did not suffer depression prior to undertaking his qualifying service. The applicant commenced suffering depression shortly after he returned from East Timor. Unlike the requirements for establishing PTSD there is no objective requirement which needs to be present before a veteran is found to suffer depression. The respondent maintains that the applicant’s depression did not arise out of his operational service but arose following the completion of that service and related to his feelings of letting down his fellow servicemen as the result of his early return to Australian. The Tribunal does not accept this as accounting solely for the applicant’s depression.
155. The earliest record of the applicant suffering depression appears on 2 June 2000 when Dr McDonald, an army medical officer, noted it in an outpatient clinical record.[232] Dr Likeman, also an army medical officer, noted the applicant as suffering major depression on 22 August 2000.[233] Dr Green reported the applicant as suffering ‘MDD’ (major depressive disorder) when he examined the applicant on 22 June 2000.[234] Dr Strauss expressed his opinion that the applicant’s experiences in East Timor “had a direct aetiological role in precipitating [the applicant’s] current psychological difficulties.”[235] Dr Strauss also reported that there were two experiences which played a significant part in the applicant’s condition vis:
(a)that the applicant left East Timor with a significant sense of “guilt and remorse when he got back … and that this threw him into a significant depression”[236]; and
(b)he found his time in East Timor “stressful and to certain extent frightening.”[237]
[232] Appeal Book, page 49.
[233] Appeal Book, page 63 to 64.
[234] Appeal Book, page 89.
[235] Appeal Book, page 239.
[236] Appeal Book, page 246.
[237] Appeal Book, page 246.
Dr Strauss, in his oral evidence in the first AAT hearing, confirmed his opinion that the applicant‘s experiences in East Timor contributed to his depressive disorder.[238]
[238] Appeal Book, page 213.
156. The events in East Timor do not have to be the sole cause of the applicant developing depression for him to qualify. It is sufficient if the condition ‘arose out of’ or ‘was attributable to’ his eligible service. That other circumstances, such as those nominated by Dr Strauss (the applicant’s wife suffering depression, the imminent arrival of a third child, marriage difficulties), played a part does not detract from the evidence which supports the depressive disorder in part arising from the applicant’s experiences both in and subsequent to which are attributable to his time in East Timor (see s 9(1)(b) of the Act).
157. There is no, or no convincing evidence, which causes the Tribunal to conclude beyond reasonable doubt that the applicant’s claim to have a recurrent depressive disorder, did not arise out of or was not attributable to his eligible war service. His claim for recurrent depressive disorder therefore satisfies the four principles of Deledio’s case and should be accepted.
Tribunal’s Decision
158. For the above reasons the Tribunal is satisfied that the applicant has the following war caused conditions – major depressive disorder and alcohol abuse and drug abuse. The decision under review is set aside and a decision substituted that he suffers the conditions as stated and the case is remitted to the respondent to calculate the pension payable.
I certify that the 158 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr G L McDonald, Deputy President and
Miss E A Shanahan, MemberSigned: ...........(sgd G Horzitski)......................
Associate Grace HorzitskiDate/s of Hearing 15 and 23 October 2008
Date of Decision 23 June 2009
Solicitor for the Applicant Mr D De Marchi, De Marchi & Associates
Counsel for the Respondent Ms J Macdonnell
Solicitor for the Respondent Mr J Babalis, Australian Government Solicitor
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