McAnally and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 1071
•22 December 2016
McAnally and Repatriation Commission (Veterans’ entitlements) [2016] AATA 1071 (22 December 2016)
Division
VETERANS' APPEALS DIVISION
File Number
2014/5530
Re
Leslie McAnally
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 22 December 2016 Place Sydney The reviewable decision made 17 September 2014 affirming the decision of the Repatriation Commission refusing Mr McAnally’s claim for post-traumatic stress disorder, is affirmed.
..............................[sgd]..........................................
Deputy President J W Constance
CATCHWORDS
VETERANS AFFAIRS - edibility for disability pension - whether Applicant suffers from post-traumatic stress disorder - whether disease is war-caused - where Applicant suffers alcohol use disorder - decision affirmed
LEGISLATION
Veterans Entitlement Act 1986 (Cth) ss 9, 13, 22, 120
CASES
Mines v Repatriation Commission [2004] FCA 1331
Smith v Repatriation Commission [2014] FCAFC 53
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition
REASONS FOR DECISION
Deputy President J W Constance
INTRODUCTION
In October 2013 Mr McAnally made a claim under the Veterans’ Entitlement Act 1986 (Cth) for a disability pension in respect of a post-traumatic stress disorder. He claims his condition arose from his operational service during the Vietnam war as a member of the Royal Australian Navy.
The claim was rejected by the Repatriation Commission and, on review, the Veterans Review Board affirmed the Commission’s decision. Mr McAnally has applied to this Tribunal to review the Board’s decision.
For the reasons which follow the decision of the Veterans Review Board will be affirmed.
BACKGROUND
Unless stated otherwise findings of fact are based on the evidence of Mr McAnally.
Mr McAnally served in the Royal Australian Navy from 8 July 1967 until 8 April 1988. He rendered operational service in Vietnam on board HMAS Hobart from 16 March 1970 until 9 October 1970. He rendered eligible service from 7 December 1972 until 8 April 1988. A number of incidents occurred during his operational service which Mr McAnally claims caused him to suffer post-traumatic stress disorder.
LEGISLATION
Part II of the Veterans’ Entitlements Act, which includes sections 12 to 34 inclusive, provides for “Pensions, other than service pensions, for veterans and their dependants”. The pension claimed by Mr McAnally is payable in accordance with this Part.
Section 13 provides that where a veteran is incapacitated from a war-caused disease the Commonwealth is liable to pay a pension by way of compensation to the veteran in accordance with the Act.
Section 9 sets out when a disease contracted by a veteran is taken to be “war-caused”. Section 9(1)(a) provides:
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
In determining whether a veteran is eligible for payment of a pension, section 19 of the Act provides that the veteran’s entitlement is to be assessed with respect to any circumstance that occurs within the assessment period. The assessment period runs from the date of the application for an increase in the pension (in this case 26 October 2013) up to the date of the decision of this Tribunal.[1] As stated by Buchanan J in Smith v Repatriation Commission:[2]
The assessment period commences on the date an application is made and concludes when the decision is made. This means that the entitlement of the veteran is not to be judged only at the time that the application is made. The position must be assessed by reference to any relevant circumstance which occurs up to the time of decision. The entitlement may increase or decrease during that period, but provided that a pension was payable at some time during the assessment period a veteran will receive either the intermediate rate or the special rate, whichever is applicable, or in the case that both are applicable, whichever is the most recently applicable.
[1] Subsection 19(9).
[2] [2014] FCAFC 53, [40].
Section 19 sets out the manner in which applications for pensions are to be dealt with. In particular, subsection 19(5B) requires applications to be assessed in accordance with the relevant sections, which include:
·Section 22 General rate of pension and extreme disablement adjustment.
ISSUES
The following issues arise for consideration.
(1)Did Mr McAnally suffer from post-traumatic stress disorder at the time of his claim or at any time since?
(2)If he did, was the disorder war-caused within the meaning of the Veterans’ Entitlements Act?
EVIDENCE
Evidence of Mr McAnally
Mr McAnally provided a statement dated 5 February 2015[3] and gave evidence.
[3] Exhibit A1.
When he joined the Navy Mr McAnally was a happy and healthy teenager. He had no psychiatric or personality problems.
From 16 March 1970 until 9 October 1970 he was on board HMAS Hobart patrolling the coast of Vietnam. During this time the ship was providing fire-power support for the troops on the ground.
At about 3am one morning (the date is unknown) Mr McAnally was on duty and was ordered to empty garbage overboard. He should not have been on deck at this time. As he was emptying the garbage he heard screaming which sounded like children. He then saw four people in the water floating past the ship. The ship reversed and then went forward again. Mr McAnally lost sight of those in the water. Once the ship reversed he did not hear further screaming.
As he was standing on the deck the ship’s gun, which was positioned about three meters above him, fired. He felt the shell go over his head. He dropped to the deck and then got up and went below. He feared for his life during this incident.
At the evening meal there was conversation about the ship having run over a sampan the previous night. He was distressed by what he had seen and heard.
Mr McAnally was based in the No. 1 Fire Room, right at the bottom of the ship. Part of his duties was to clean the bilges under one of the fire pumps. It was a very difficult area for him to access. He was tall and it took him 10 minutes to crawl into the area he had to clean. When he said to his superior officer that he would be unable to get out if the ship was hit he was told that he would be “the first to die”. This caused him to feel anxious, angry and resentful.
After he left the Navy Mr McAnally became increasingly angry in his workplace until he ceased work in 2007.
Mr McAnally continues to experience nightmares, sleeplessness, restlessness, aggressiveness and frustration which he attributes to his experiences in Vietnam.
Evidence of Dr Pusic, Consultant Psychiatrist
Dr Pusic has been Mr McAnally’s treating psychiatrist since October 2005. Mr McAnally was referred to Dr Pusic by his General Practitioner. Mr McAnally consults Dr Pusic every second or third month.
Dr Pusic provided reports dated 13 June 2006, 21 August 2013 and 13 May 2015[4] and gave evidence.
[4] Exhibit A2.
In June 2006 Dr Pusic reported, in part:
Mr McAnally did describe experiencing recurrent dreams and nightmares since his experiences in Vietnamese waters. He describes frequently wakening at night acutely agitated and distressed. He described experiencing recurrent intrusive recollections of his experiences whilst on the Hobart and these were associated with a feeling of overwhelming anxiety. He described having a particular phobia of being in confined or crowded places. He told me that he could not tolerate traveling in trains. He told me that he felt “locked in”. Furthermore he found it difficult to be in lifts. Mr McAnally described emotional lability with frequent episodes of deep dysphoria. He described irritability with low frustration tolerance and poor impulse control. He described increased muscle tension, a sense of inner tension and a sense of apprehension. He preferred to isolate himself. He was negative and pessimistic as to his future outlook. Mr McAnally has abused alcohol since his return from Vietnamese waters. He told me he would drink on a daily basis to the point of intoxication. He would suffer early withdrawal symptoms if he were not to drink on a daily basis.
…
I diagnose Mr McAnally to be suffering from chronic Post Traumatic Stress Disorder as a result of the trauma he experienced whilst on acute duty to Vietnam. Mr McAnally will also qualify for a diagnosis of Alcohol Dependence.
Prior to his report of 21 August 2013, Dr Pusic had last seen Mr McAnally in mid-June 2013. In August 2013 Dr Pusic reported, in part:
Since his medical retirement Mr McAnally has fared reasonably well. He has been able to bring his alcohol abuse under control. He continues to display significant symptoms of PTSD.
In his report of 13 May 2015 Dr Pusic said, in part:
Mr McAnally does display all the hallmarks of Chronic Post Traumatic Stress Disorder. The symptomotology is well described in my previous reports. The onset of Mr McAnally’s PSTD [sic] would have been at the time that he suffered the traumatic incidents whilst on active service. Symptomotology would have developed over many years, associated with co morbid conditions, in particular Alcohol Dependence Mr McAnally sought psychiatric help in 2005.
…
I have continued to see Mr McAnally on a regular basis and I last reviewed him on the 12 February 2015. I continue to diagnose Mr McAnally to suffer from Post Traumatic Stress Disorder as he continues to display symptoms as described under Section B and C of the SOP concerning Post Traumatic Stress Disorder (5 of 2008). Namely Mr McAnally continues to re experience the traumatic event through recurrent, intrusive and distressing recollections of the events. He experiences distressing dreams, he experiences, psychological distress when reminded of his experiences he would prefer to avoid conversation and reference to his traumatic experiences, he would avoid activities and places that would remind him of his experiences, he has difficulty in communicating with others and he has had a negative and pessimistic attitude. Furthermore he does suffer from severe anxiety, fluctuating in intensity but ever present, hypervigilance, difficulty with concentration and frequent episodes of dysphoria. He does also show a pattern of Alcohol Dependence, now in partial remission.
When he gave evidence Dr Pusic said that in 2006 he made the diagnosis of post-traumatic stress disorder on the basis of DSM-IV and that he had no doubt that Mr McAnally continues to suffer from this disorder. He regards post-traumatic stress disorder and alcohol use disorder as quite separate disorders and the presence of the latter does not impede the diagnosis of the former.
Evidence of Dr Dinnen, Consultant Psychiatrist
Dr Dinnen examined Mr McAnally in June 2015 at the request of his Solicitors. He provided a report dated 18 June 2015 and gave evidence.
Dr Dinnen diagnosed Mr McAnally as suffering from post-traumatic stress disorder which commenced during his service on HMAS Hobart in 1970. He reported that “[the] requirement that the patient respond to traumatic experience with “intense fear, helplessness or horror” can be inferred as satisfied by the patient’s account and reactions as described.”[5]
[5] Exhibit A3.
Dr Dinnen said that in his opinion Mr McAnally had a history of alcohol abuse as well as post-traumatic stress disorder.
Evidence of Dr Smith, Consultant Psychiatrist
Dr Smith examined Mr McAnally in May 2015 at the request of the Commission. He provided a report dated 5 May 2015 and gave evidence.
In the opinion of Dr Smith, Mr McAnally does not suffer from post-traumatic stress disorder. In his opinion he does suffer from alcohol use disorder and has longstanding trait anxiety.
Dr Smith reported, in part:
It is my opinion that Mr McAnally is demonstrating diagnostic criteria for an Alcohol Disorder, chronic in duration.
Mr McAnally has experienced a longstanding and problematic pattern of alcohol use that in my opinion has led to clinically significant impairment and distress. He has consumed significant quantities of alcohol over a lengthy period of time. He has experienced a persistent desire to utilise alcohol. In all probability recurrent alcohol use has resulted in a failure to undertake major role obligations at work or at home. In all probability it has also resulted in recurrent social and interpersonal problems. By his own account Mr McAnally did report experiencing difficulties with alcohol during his Naval services and subsequently.
…
I respectfully disagree with the opinion of Dr Pusic that Mr McAnally is not currently experiencing significant problems related to his alcohol intake.
…
It is quite probable that the alcohol excess that MR McAnally has been utilising has significantly contributed to his anxiety and depression. Alcohol may induce both anxiety and depression. In all probability alcohol excess has caused Mr McAnally to experience clinically significant distress with accompanying impairment in his social, occupational and other important areas of functioning.
…
In my opinion Mr McAnally has not developed a Post-Traumatic Stress Disorder…. Significantly Mr McAnally’s responses did not involve intense fear, helplessness nor horror at the time. He has not in my opinion experienced true dissociative flashback episodes related to the events that occurred. He has not avoided thoughts, feelings or conversations associated with the trauma. By his own account he vividly recalled aspects of the trauma. He has not experienced a diminished interest or participation in significant activities because of the trauma experienced. There has been no clinical evidence of detachment or estrangement from others. It is my opinion that his impairments in concentration, irritability and outbursts of anger and sleep impairments are more likely related to his Alcohol Use Disorder.
It is important to emphasise that in order to make a reliable diagnosis of Post-Traumatic Stress Disorder or indeed a Major Depressive Disorder it must be clearly established that the disturbance is not a result of the physiological effects of another substance such as alcohol. It is my opinion that this has not been considered by his treated personnel.[6]
[6] Exhibit R2, pp. 10-11.
Report of Dr Lewin, Psychiatrist
Mr McAnally was assessed by Dr Lewin in November 2008 at the request of the Department of Veterans’ Affairs. He provided a report dated 24 November 2008[7]; he did not give evidence.
[7] R1 p.148.
At that time Dr Lewin was of the opinion that Mr McAnally had alcohol dependence and a partially treated major depressive disorder. He had a life-long history of trait anxiety. In Dr Lewin’s opinion Mr McAnally did not fulfil standard criteria for post-traumatic stress disorder.
DISCUSSION
Issue 1: Did Mr McAnally suffer from post-traumatic stress disorder at the time of his claim or at any time since?
The question of whether a veteran suffers from a claimed condition is to be determined on the balance of probabilities in accordance with section 120 of the Act. This section provides for the standard of proof required.[8]
[8] Mines v Repatriation Commission [2004] FCA 1331.
Having considered the various opinions of the medical practitioners I am not satisfied on the balance of probabilities that Mr McAnally has at any time suffered from post-traumatic stress disorder, the claimed condition in this application. It may be that he has other conditions which have not been claimed as being war-caused, but these conditions are not the subject of this review.
I have given careful consideration to the opinions of Dr Pusic and Dr Dinnen and taken into account that Dr Pusic has been Mr McAnally’s treating psychiatrist for over ten years. However their evidence is not such as to cause me to be satisfied on the balance of probabilities that their diagnoses are correct in light of the differing opinions of Dr Smith and Dr Lewin.
When he gave evidence Dr Smith presented clear and carefully expressed reasons as to why a diagnosis of post-traumatic stress disorder was not appropriate. He formed the view that Mr McAnally had consumed excessive amounts of alcohol over a long period of time, giving rise to a diagnosis of alcohol use disorder, a diagnosis with which both Dr Dinnen and Dr Pusic agreed.
Dr Smith was of the view that the excessive use of alcohol can cause an underlying exacerbation of anxiety, a symptom of post-traumatic stress disorder. Further there can be an overlap of symptoms in some psychiatric disorders and in Mr McAnally’s case, alcoholism was the dominant factor. His excessive use of alcohol made the diagnosis of other conditions difficult.
In the Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-V)[9], one of the diagnostic criteria is stated to be:
H. The disturbance is not attributable to the psychological effects of a substance (e.g., medication, alcohol) or another medical condition.[10]
Issue 2: Was the disorder war-caused within the meaning of the Veterans’ Entitlements Act?
[9] Published by the American Psychiatric Association.
[10] At p.272.
In view of the conclusion I have reached in relation to the first issue, this issue does not arise.
CONCLUSION
The reviewable decision made 17 September 2014 affirming the decision of the Repatriation Commission refusing Mr McAnally’s claim for post-traumatic stress disorder, will be affirmed.
I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of J W Constance, Deputy President ...............................[sgd].........................................
Associate
Dated 22 December 2016
Date(s) of hearing 27 May 2016; 9 June 2016; 8 July 2016 Date final submissions received 11 August 2016 Counsel for the Applicant G Barter Solicitors for the Applicant KCI LAWYERS Solicitors for the Respondent Department of Veterans' Affairs
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