Marsh and Repatriation Commission

[2006] AATA 789

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 789

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/438

VETERANS’ APPEALS DIVISION		)
Re		JOHN DARYL MARSH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member B J McCabe

Dr Maynard, Member

Date15 September 2006

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – applicant claiming PTSD from war time activities – diagnosable condition – contradictory medical evidence – no diagnosable condition

Veterans’ Entitlements Act 1986 s 120

REASONS FOR DECISION

15 September 2006 Senior Member B J McCabe
Dr Maynard, Member

introduction

1.      Mr John Marsh claims he suffers from post traumatic stress disorder (PTSD) that developed as a result of his experiences while on operational service with the Navy. The Repatriation Commission originally accepted that the applicant suffered from PTSD although it now doubts whether the applicant suffers from PTSD or any other compensable psychiatric condition, and denies liability for any condition in any event. The Veterans’ Review Board agreed with the respondent and the matter has now come before this Tribunal.

2.      For reasons we will explain, we are not satisfied the applicant suffers from a diagnosable psychiatric condition that can be attributed to his operational service. It follows that we affirm the decision under review.

the material before the tribunal

3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. A number of other statements were tendered in evidence, as were the medical reports of Drs Carter and Kingswell. Drs Carter and Kingswell gave evidence, as did the applicant. Several other witnesses also gave evidence by telephone.

4.      The parties asked for time to prepare written submissions. The applicant’s submissions are dated 28 June 2006. The respondent’s submissions are dated 12 July 2006. The applicant’s submissions in reply are dated 20 July 2006.

5.      The applicant was represented by Ms Carter-Nicoll of counsel. Mr Williams, a Repatriation Commission advocate, represented the respondent.

the factual background

6.      The applicant was born on 29 August 1943. He was 63 years of age at the hearing. He enlisted in the Navy on 28 August 1961 and served in a variety of ships until he was discharged on 10 December 1970. During part of that time, he undertook operational service – most importantly (for present purposes) aboard HMAS Hobart between 16 March 1970 and 9 October 1970. Hobart served on the gun-line during this period: the ship was on station off the coast of Vietnam where it bombarded inland targets as required. Most of the incidents he now says are severe stressors occurred while he was aboard the Hobart. He also rendered operational service aboard HMAS Quiberon. He recounted one incident in particular that took place during his service on Quiberon that might amount to a severe stressor.

7.      The most important of these incidents occurred while the applicant was serving aboard HMAS Hobart. He says he was on deck when the ship was travelling alongside the USS Firedrake in the course of an underway replenishment operation. The applicant says he saw an American naval officer climb over the rails of the ship and leap into the waters churning in the narrow gap between the ships. There appears to have been some sort of struggle as the man leapt from the ship; other sailors were apparently trying to stop him from jumping. The applicant says he has no doubt the man was attempting to commit suicide. It appears the American sailor was unsuccessful: there were reports that he was rescued by the diver that was stationed on the deck in case anyone went overboard, although the applicant said he did not hear of a rescue attempt for several days afterwards.

8.      Mr Williams questioned the applicant about his response to this incident. The applicant said he did not cry out or attempt to alert anyone to what had occurred. He said in his evidence that it was clear for all to see, so there was no need to draw attention to what had occurred. He said he went below. He says he was shaken up by the incident and horrified at the prospect of someone taking his own life. Mr Williams invited us to infer the applicant did not exhibit the feelings of horror that are to be expected if someone claims to have witnessed an event that qualifies as a severe stressor for the purposes of the PTSD statement of principles.

9.      We are satisfied the applicant did see the event he described, and that he did react with horror. We do not propose to describe in detail the other stressful events upon which he relies.

10.     The applicant says he started drinking more heavily following his periods of operational service. He claimed he would drink to excess when on shore leave. He also claimed he would get into fights.

11.     The applicant’s brother commented in a statement that the applicant had changed while he was away in Vietnam. The applicant said he felt angry on his return and he was not given any support or debriefing by the Navy. He decided to seek a discharge when he returned to Australia even though it had previously been his plan to have a career in the Navy.

12.     Mr Marsh worked as a real estate agent between the end of 1970 and the latter part of 1974. It was a stressful period: he separated from his wife during this time. Even so, he appears to have flourished in the real estate business. He steadily assumed more managerial roles. After a brief stint as a finance manager, he commenced a career in sales with a firm that sold electronic medical devices. He was promoted through the ranks of the organisation over the next few years and became chief executive officer of the American branch in 1980. He remained in that post until June 1982 before taking up a variety of other senior roles in the organisation. His work history (exhibit 3) suggests he had difficulty dealing with the various personalities he encountered. He departed and established his own pool fencing business on the Gold Coast in 1984. He says he made a conscious decision to run the company himself from his home without employees. He appointed distributors who operated at arms’ length.

13.     The applicant’s pool fencing business appeared to be a success but it ran into trouble in 1999 when the applicant cancelled the contract of his major distributor. In his oral evidence, he said it was an irrational decision that can only be properly explained by his PTSD condition. He said his wife took over the running of the business after that point, but it never really recovered. He added there were other examples of poor judgement and irascibility which resulted in bad business decisions.

14.     Mr Marsh subsequently returned to selling real estate. He is now effectively retired. He lives with his wife in an apartment in Brisbane. He says he is particularly concerned that his wife would be left in a difficult position if anything happened to him.

15.     The applicant says he has continued to suffer from feelings of anger over the years. He described an incident involving his daughter where he lost his temper and slammed a car door so hard the glass smashed, covering his daughter in shards of glass. He says he attempted to deal with the feelings of anger and stress by jogging. He became a committed runner. He says it was his only form of relief. In his work history statement (exhibit 3), he makes it clear he does not suffer (those whom he regards as) fools gladly. He obviously experienced impatience and even exasperation when dealing with other people. It appears he has a tendency to “blow up” at people.

16.     Mr Marsh was told about PTSD and watched a video presentation by a former Army officer explaining the consequences of the condition. It was a revelation. The applicant said he decided to see Dr Carter, who confirmed a diagnosis of PTSD. He started receiving treatment. Mr Marsh says the news he had PTSD has provided him with answers for much of his behaviour – especially his bad behaviour – since he returned from Vietnam.

the medical evidence

17. Before we make an assessment of the claim under s 120 of the Veterans’ Entitlements Act 1986, we must settle on a diagnosis. The applicant’s treating psychiatrist, Dr Carter, has diagnosed PTSD with an alternative diagnosis of generalised anxiety disorder (GAD). Dr Carter has certainly spent a great deal of time with the applicant: she has seen him individually and in group therapy on at least fifty occasions over a relatively short space of time.

18.     The respondent’s medical expert, Dr Kingswell, says the applicant does not suffer from a diagnosable psychiatric condition. He disputes the diagnosis of PTSD in particular on several bases. He doubted whether any of the events described by the applicant could constitute severe stressors – a requirement in the diagnostic criteria of DSM-IV (the diagnostic and statistical manual of mental disorders). He also says the applicant has not exhibited enough of the clinical symptoms to satisfy the criteria. More generally, he observed the applicant does not appear to have suffered a sufficient degree of impairment to sustain a diagnosis. Dr Kingswell points out the applicant had a successful career in a challenging environment for many years. He was a high achiever who did not appear to be impaired in his performance at work.

19.     Dr Kingswell saw the applicant once, for two hours. The applicant was unhappy with the way in which that meeting proceeded, and with how it was reported. He wrote a lengthy letter criticising Dr Kingswell’s reports. Dr Kingswell conceded in his oral evidence that there were some minor errors in the facts he recorded but said his opinion remained unchanged once those errors were pointed out. We also note there was a lengthy delay in writing up the report after the interview. While that is regrettable, after hearing Dr Kingswell give evidence we are not satisfied the delay affected the integrity or reliability of the observations recorded in the report.

20.     We acknowledge Dr Carter has had a great deal more time to observe the applicant and form a view about his condition. Ms Carter-Nicoll pointed out Dr Carter did not reach the diagnosis lightly: it took several meetings with the applicant before Dr Carter was prepared to diagnose PTSD. Dr Carter said the applicant’s condition tended to wax and wane, and it is possible Dr Kingswell saw the applicant on a good day.

21.     We prefer the evidence of Dr Kingswell in this case. Dr Carter is the treating psychiatrist with a close ongoing relationship with the applicant. She is in a difficult position when it comes to giving evidence. Almost inevitably, she has become an advocate for her patient. Dr Kingswell, in contrast, is in a position to offer an objective opinion. We accept he may have seen the applicant on a good day but we think Dr Kingswell has taken that possibility into account. We note his reference to the objective evidence which shows the applicant functioned effectively in a high-pressure environment – evidence which is inconsistent with Dr Carter’s opinion.

22.     Dr Kingswell did not deny the applicant was experiencing problems. Dr Kingswell said the applicant might be experiencing a “phase of life” problem which would benefit from treatment. But he insisted there was no diagnosable condition – either PTSD or GAD. We agree.

conclusion

23. In the absence of a diagnosis, there is no point proceeding to evaluate the applicant’s claim under s 120 of the VEA. The decision under review must therefore be affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe and Dr Maynard, Member.

Signed:         .....................................................................................
  Associate      Adam Ryan

Date of Hearing  20 & 21 June 2006
Date of Written Submissions    17 July 2006
Date of Decision  15 September 2006
The applicant was represented by Ms Carter-Nicoll, of Counsel.
The respondent was represented by Mr Williams, a departmental advocate.