Meredith and Repatriation Commission - [2001] AATA 115

DECISION AND REASONS FOR DECISION [2001] AATA 115

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1011

VETERANS' AFFAIRS DIVISION         )
           Re      LESLIE MEREDITH
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Dr J D Campbell

Date16 February 2001
PlaceSydney

Decision The Tribunal affirms the decision under review.

………………………….
Dr J D Campbell
` Member

CATCHWORDS
Veterans' Entitlements - pre eligible service event - post traumatic stress disorder - further eligible service incident - clinical worsening of post traumatic stress disorder - issue of severe stressor - substance dependence

Veterans' Entitlements Act 1986, sections 120(1), (3), (4), 120B

REASONS FOR DECISION

Dr J D Campbell, Member

Mr Leslie Meredith ("the Applicant") in this matter seeks a review of the decision of the Repatriation Commission ("the Respondent") dated 13 May 1998 which rejected the Applicant's claim for post traumatic stress disorder to be war caused. The latter decision had been reviewed by the Veterans' Review Board ("the VRB") and affirmed in a decision dated 7 April 1999.
A hearing was held before the Tribunal on 7 August 2000 at which the Applicant was represented by Mr Winship, a solicitor. The Respondent was represented by Ms Doggett, an advocate from the Department of Veterans' Affairs. The Applicant presented oral evidence to the Tribunal.
The following material was placed in evidence before the Tribunal:
Documents prepared pursuant to the Administrative Appeals Tribunal Act 1975 T1-T14 pp1-54
Statement of the Applicant, dated 7 August 2000         Exhibit A1
Medical report of Dr Koller, dated 30 November 1999 Exhibit A2
Applicant's statement of facts and contentions, dated 17 December 1999   Exhibit A3
Respondent's statement of facts and contentions, dated 17 December 1999         Exhibit R1
Department of Defence documentation, dated 17 December 1999    Exhibit R2
Report of Mr O'Keefe dated 9 May 2000 Exhibit R3
Report of Dr Walden, dated 25 October 1999    Exhibit R4

Issues

The relevant issues in this matter are whether the Applicant experienced a severe stressor prior to clinical worsening of his post traumatic stress disorder and if so, whether factor 1(b) of the Statement of Principles Instrument No 16 of 1994, as amended by Instrument No 226 of 1995 ("the SoP"), concerning post traumatic disorder, is satisfied.
Legislation
The relevant legislation in this matter is the Veterans' Entitlements Act 1986 and in particular ss120(1), (3), (4) and 120B.
Background
The Applicant lodged a claim on 6 April 1998 for acceptance of bilateral sensorineural hearing loss and post traumatic stress disorder as being war caused disabilities. The claim for post traumatic stress disorder was rejected on 13 May 1998 and this was subsequently affirmed by the VRB in a decision dated 7 April 1999.
The Applicant has the accepted disability of bilateral sensorineural hearing loss, and the disability accepted as eligible for treatment (not service related) of post traumatic stress disorder.
The Applicant had a period of eligible defence service from 7 December 1972 to 6 may 1986. As a consequence the standard of proof is the balance of probabilities, with the earliest dated of effect, if the Applicant is successful, being 6 January 1998.
Applicant's Evidence
The Applicant, aged 51, told the Tribunal that he joined the Navy on 7 May 1966 at the age of 16, with prior experience as a spot welder. Prior to service he was a non smoker and non drinker. After recruit training at HMAS Cerebrus and training as a cook he served as an able seaman cook on the ships Perth, Anzac and Sydney, before joining the Melbourne on 25 October 1968. At this time he was still a non smoker, but consumed two cans of beer a day and occasionally drank more than this.
On 5 June 1969 he was in bed at 0315 hours when an incident occurred and the crew was piped "hands to collision station". The Applicant thought that this was another exercise but a leading hand told him that it was a "real one". The Applicant was with a group on deck and heard the scratching of metal and the yelling of sailors. Apart from the fumes, he observed the number of a ship rising up out of the water, with sailors hanging on to the guard rails, before it disappeared beneath the water. He felt sick and also had feelings of apprehension and fear. The Applicant further stated that at 0400 hours he went back to work as a baker; that he did not receive any counselling and that he was quiet for two or three weeks. Nevertheless the Applicant, while he has never forgotten the episode and has had frequent nightmares where he sees the episode all over again, had no difficulty in coping with his duties. However his pattern of sleeping did alter and he commenced smoking.
The Applicant stated that he left the Melbourne on 8 December 1969 and was posted to Watson where he remained for the next three years. He coped with his job, married in 1970, with everything being a lot better, although he still only slept for five hours a night and his drinking and smoking continued.
The Applicant stated that on 20 August 1973 he joined HMAS Brisbane and while remaining apprehensive about the incident on the Melbourne, sailed for the Rimpac exercises with HMAS Melbourne to Hawaii. His action station during the exercise was two decks down in the magazine with the hatches closed tight. At night with the guns firing the Applicant stated that he became scared, with the memory of the Evans still in his mind. The Applicant stated that he felt closed in and wanted to get out. He left his action station and went back to the kitchen. He stated that he saw no-one, that no-one attempted to stop him and that his action station was changed to the kitchen. The Applicant stated that he carried on his duties thereafter, although he noted that his smoking and drinking habits further increased from that time and that there was a further diminution in his night sleep to four hours.
Following the 1973 episode the Applicant stated that when he was in harbour he was "always on the turps", smoked more and slept less and felt that something would happen to him. He did not talk about the issue with others very much and was still coping with his Navy duties. After the HMAS Brisbane he was posted to Penguin. At this time his marriage and his two daughters were fine.
The Applicant stated that after a posting to Kuttabul he rejoined the Brisbane and in 1977 sailed to Britain for the Queen's Jubilee, after which the Brisbane accompanied the Melbourne in the North Sea. The Applicant, by then a leading hand, had his action station in the kitchen and experienced little difficulty with the exercise, although he did feel fearful when sailing in fogs for two weeks. His drinking remained at two cans a day at sea and he was smoking 60 cigarettes a day.
After a further shore posting, promotion to petty officer and postings to Perth and Tobruk, the Applicant left the Navy in 1986. The Applicant stated that a son had been born in 1979, but by the time he left the Navy he encountered many arguments in his marriage. He became irritable, was drinking more, continued to be a bad sleeper and he left his family.
The Applicant said that he joined the merchant navy and served for eight years. This settled the marriage down although he was drinking more. The Applicant stated that he coped with dry ships by "having a joint or two" twice a week which helped him sleep. He further stated that in the period 1992-94 he saw a doctor in Murwillumbah who prescribed valium to help him sleep. At this stage he was working six weeks and six weeks off, his marriage was settled and he was drinking about the same quantity of alcohol, mainly beer.
The Applicant further stated to the Tribunal that he left the merchant navy about four years ago and commenced working in a club as a cook. He left this job and came to Sydney, notifying his employer that he would not be returning. In Sydney he works from 9.30 until 2.30 each day for a maximum of 20 hours per week, but he has difficulty in handling the work. The Applicant stated that he was drinking 10-15 schooners of beer a day, smoking about 50-60 cigarettes a day and continues to sleep poorly, waking early and having bad dreams about the Evans. He recognises that he had a problem with his drinking and was referred to a general practitioner who in turn referred him to Dr Koller.
In response to questions in cross examination, the Applicant stated that he saw Dr Koller for about two years from the time he put in his claim to the Respondent, and that he continues to see him three to four times a year. The Applicant indicated that he came to Sydney about three to four years ago, earns about $500-$600 a week and after rent, food and basics has a disposable income of about $250 per week. The Applicant indicated that about twice a week he goes to the hotel with his friends and at other times watches television and reads papers.
The Applicant stated that he could not remember his action station on the Melbourne in 1969 but does remember that he suffered headaches after the time of the collision. He stated that the nightmares started almost straight away, occurred two to three times a week and then became worse after the 1973 incident. The Applicant stated that he thinks about the collision when he is awake and that in so doing he relives the episode, but that no images flash into his mind. His dreams never involve either of the Rimpac or the North Sea exercises. The Applicant also stated that he still has some Navy friends, one of whom he works with, and that he attends the cooks reunion. He further stated that he suffered from claustrophobia in helicopters in the merchant navy, in trains and in free fall boats.
In response to questions from the Tribunal the Applicant stated that his family relationships are now satisfactory and that although taking normison (prescribed by Dr Koller) he wakes at 3am and gets up. Further his drinking and sleeping habits have been the same for 15 years and there are no days on which he does not have alcohol.
In answer to questions in re-examination, the Applicant indicated that he was contemplating divorce as he prefers to be alone. He stated that he has not seen his son for two years, although he talks to him on the telephone from time to time. The Applicant stated that he feels that his symptoms go back to the incidents of 1969 and 1973. He further stated that he avoids arguments, gets angry but bottles it in and he feels that he is experiencing an average life and "takes it as it comes".
Medical Evidence
Dr Koller
Dr Koller, the treating psychiatrist, in his report dated 23 April 1998, opined that the Applicant:
"…shows chronic post traumatic stress disorder that commenced with the "Evans" "Melbourne" collision in 1963. He said he seemed to cope with the collision with no significant complaints. Then in 1973 he was involved in night firing on the "Brisbane". He became very fearful, he was puzzled that his thoughts turned to the collision…
…
The symptoms are moderate and persistent.
…" (T5, P26)

In a further report dated 29 May 1998, Dr Koller stated that the Applicant was stressed and anxious after the collision in 1969 and that he received no formal treatment or counselling. Instead he treated himself with excess alcohol and tobacco. Dr Koller contended that the "Brisbane" incident in 1973 caused a worsening of the previous anxiety disorder, that is, a clinical worsening of a prior condition into post traumatic stress disorder. (T7, P33)
In a report dated 30 November 1999, Dr Koller concluded that "it might be better to state that post traumatic stress disorder was there from the very beginning", and that during "the night firing he suffered intense psychological distress at exposure to cues and symbols that resembled the 1969 trauma." (Exhibit A2)
Dr Walden
Dr Walden, consultant psychiatrist, examined the Applicant and in a report dated 25 October 1999 stated the results of her mental state examination:
"…
Mr Meredith presented as a neatly groomed man. He pulse was 68 beats per minute. His palms were not sweaty. He was not particularly co-operative during the interview, tending to talk in generalities and often giving contradictory answers which he could not clarify. He affective range was normal. There was no sustained mood of anxiety or depression. There was no psychomotor agitation or retardation. There was no suicidal ideation. There were no features of psychosis.
…" (Exhibit R4)
Further Dr Walden made the following diagnosis and stated the following opinion:
"…
As previously noted Mr Meredith gave a somewhat confusing and contradictory history. He stated that he was on board the Melbourne when it collided with the Evans, and he saw the Evans sink and sailors trying to get off the ship. Perhaps he had a couple of dreams about this spoke to the medic about his difficulties sleeping, but does not describe any other symptoms until he was on a training exercise in 1973 when he felt claustrophobic below deck during battle stations, and in other reports is said to have been traumatised by the firing of the guns.
He alleges that after this incident he has had nightly dreams of the Melbourne-Evans collision, though this is not the history he has been giving he treating psychiatrist.
He states that he has occasional thoughts whilst awake of the collision if there is a specific reminder. Again, this is different to the history he gave his treating psychiatrist. He does not describe persistent avoidance of stimuli associated with either of these traumas. He continued to serve in the Navy until 1986 and then joined the merchant navy for further 8 years. He attends reunions. He goes to ANZAC day. He stated that he has occasionally walked away from conversations about the collision.
He describes some difficulty staying asleep, but this is consistent with his alcohol abuse. He describes some problems in the relationship with his wife, but does not describe being generally irritable to other people.
I do not consider that Mr Meredith fulfils the DSM IV criteria for Post Traumatic Stress Disorder, even given the most generous interpretation of his contradictory history. At most he has recurrent dreams, occasional avoidance of conversations about the collision and some sleep disturbance. This is insufficient to make the diagnosis.
I note that Mr Meredith's eligible Defence service does not include the time covering the collision of the Evans and the Melbourne. He does not describe symptoms of Post Traumatic Stress Disorder between 1969 and 1973. He does not fulfil the diagnostic criteria after this date either.
Mr Meredith fulfils the DSM IV criteria for alcohol dependence. He describes tolerance to a large quantity of alcohol, around ten to fifteen schooners most days without feeling intoxicated. Most of his leisure time is spent consuming alcohol. He has sleep disturbance typical of the alcohol dependent. Whilst he states he has not been told by a doctor he drinks too much, I would find it very surprising if Dr Koller has not commented on his excessive alcohol consumption."
(Exhibit R4)

Submissions: The Applicant

The solicitor for the Applicant contended that the Applicant experienced a stressor during the night exercise Rimpac when on board HMAS Brisbane, when his physical integrity was threatened by recurrent, intrusive and distressing recollections of the collision between HMAS Melbourne and USS Evans on the night of 3 June 1969. As a result of the earlier incident the Applicant did suffer and continues to suffer from post traumatic stress disorder and this was made worse by his later experience in 1973. It is the Applicant's submission that he satisfies the requirements nominated in the SoP.
The Respondent
The Respondent, in relying upon the report of Dr Walden, contends that the Applicant does not and has never suffered from a post traumatic stress disorder. Further the Respondent contends that the Applicant did not experience a stressor as defined in the SoP during his period of eligible defence service, and accordingly does not satisfy the requirements nominated within that Instrument, namely No 16 of 1994.
Consideration and Findings
In preliminary comment the Tribunal observes that the Applicant's incident involving the collision between the "Melbourne" and the "Evans" lies outside the period of eligible service. Nevertheless in addressing the issue of whether the incident gave rise to the Applicant suffering a psychiatric illness, and in particular to post traumatic stress disorder, is a matter that needs to addressed by the Tribunal. The Tribunal notes that Dr Koller believed it did, while Dr Walden believes that it did not and the Applicant's symptomology is explained by the existence of psychoactive substance dependence, namely on alcohol.
In addressing this issue the Tribunal notes that the condition of post traumatic stress disorder is defined within paragraph 4 of the SoP, namely:
"(a) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person's response involved intense fear, helplessness, or horror; and
(b) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and
(c) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg unable to have loving feelings);
(vii) sense of foreshortened future (eg does not expect to have a career, marriage, children, or a normal life span); and
(d) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv )hypervigilance;
(v) exaggerated startle response; and
(e) duration of disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month: and
(f) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning."

The Tribunal in addressing the issue of whether the Applicant suffered post traumatic stress disorder as result of the collision in 1969, notes the particulars of the Applicant's evidence where he describes his response to the events as one of fear, apprehension and feeling sick. The Tribunal further notes that he returned to his duties, was quiet for two to three weeks, suffered a headache which he treated with aspirin and carried on with his duties. The Applicant did however state that he commenced having difficulties with sleep, has recurrent nightmares of the event and commenced smoking. The Applicant stated that he received no counselling and that he left the ship in December 1969. He gave evidence that when he married in 1970 he was coping with his job a lot better, while his sleeping habit remained at five hours per night. This remained the situation until late 1973.

In assessing this history against the diagnostic criteria nominated the Tribunal concludes that:
(a)      paragraph 4(a)(i) is satisfied in that the Applicant's description of the event clearly defines in objective terms an experience in which he witnesses actual death and injury to others;
(b)      paragraph 4(a)(ii) is not satisfied in that the Applicant's description of his response was one of fear, apprehension and feeling sick, after which he returned to his kitchen and carried on his duties as baker, and in the Tribunal's assessment the Applicant demonstrated symptoms of being anxious, which were in part relieved by returning to work in familiar surroundings;
(c)       paragraph 4(b)(2) is satisfied in that the Applicant has recurrent nightmares of the event;
(d)      paragraph 4(c) is not satisfied as none of the features nominated were present at the time of the incident;
(e)      paragraph 4(d) is not satisfied in that the Applicant's only issue at the time was difficulty with sleep; and
(f)       paragraph 4(f) is not satisfied because there is no evidence of distress in any of the areas nominated at that time.
As a result of the Tribunal's analysis it finds that the Applicant did not suffer a post traumatic stress disorder condition as a result of the collision in 1969 in that the Applicant's clinical symptomology after the event and for the following four years did not meet the criteria for the diagnosis of the condition.
The Tribunal notes that the next incident was in late 1973 when the Applicant was aboard the Brisbane and in the company of the "Melbourne" in a night firing exercise in Hawaii. The Applicant stated that his action station was in the magazine, two decks down, with the hatches closed. The Applicant stated that he became scared, with the memory of the Evans in his mind, felt closed in and that he wanted to get out. He left his station and went back to the kitchen. Thereafter his action station was changed to the kitchen and he carried out his duties without difficulty in a number of ships over time, receiving promotion prior to leaving the Navy in 1986. The Applicant noted that his drinking and smoking increased after the 1973 episode.
In considering the 1973 incident and the history of his symptoms as detailed by the Applicant, the Tribunal notes that the factors nominated in both paragraph 1(a) and (b) of Instrument No 16 of 1994 both require the Applicant to experience a stressor prior to the onset or clinical worsening of post traumatic stress disorder respectively. "Experiencing a stressor" is defined in paragraph 4 as:
"experiencing a stressor" means the following (derived from DSM IV):
(a) the person experienced, witness, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and
(b) the person's response to that event involved intense fear, helplessness or horror;
…"

In turning to the factual issues of the 1973 incident, the Tribunal finds that the night firing incident and the situation in which the Applicant was located could not be concluded to be one in which the Applicant experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury, or a threat to his or others personal integrity. In the Tribunal's view an objective assessment of the Applicant's evidence of the event clearly indicates the absence of death, serious injury or a threat to the physical integrity of himself or others.
The Tribunal in this matter further finds that the Applicant's reaction to the circumstances was to leave his station and return to his kitchen where he carried on his duty. The Tribunal observes that there was particular evidence of increased psychological stress on the Applicant during this incident and that he dealt with this by returning to the kitchen. The Tribunal finds that his response was not one of fear, helplessness or horror.
As a result of this evaluation the Tribunal finds that the Applicant does not satisfy either factor 1(a) or (b) contained within Instrument No 16 of 1994.
In summary analysis the Tribunal concludes that a hypothesis has been proposed that postulates that the Applicant had a condition of post traumatic stress disorder prior to the incident in 1973 and that this incident in 1973 caused a clinical worsening of the preexisting condition. It is alternatively postulated that the incident of 1973 gave rise to the clinical onset of post traumatic stress disorder, with the Applicant being sensitised by the event of 1969.
In further analysis the Tribunal concludes that the Applicant did not suffer from the condition of post traumatic stress disorder at the time of the 1973 incident as a consequence of the 1969 incident. Further the Tribunal concludes that the Applicant did not experience a stressor in the 1973 incident, and as such fails to satisfy factors 1(a) or 1(b) of Instrument No 16 of 1994. Similarly the Applicant fails to satisfy the diagnostic criteria for the condition of post traumatic stress disorder as he has not been exposed to a traumatic event nominated in paragraph 4(a) of the same Instrument. The Tribunal notes that the same reasoning applies to the latter finding as it did to "experiencing a stressor", for the test is the same.
As a consequence the Tribunal concludes that neither hypothesis postulated can be considered to be a reasonable hypothesis for the want of a diagnosis of post traumatic stress disorder and the want of experiencing a stressor in accordance with the criteria nominated in Instrument No 16 of 1994.
In final comment the Tribunal, having considered the Applicant's history and the opinion of Dr Walden would conclude that the Applicant does have the condition of alcohol dependency. As to whether this was war caused was not argued before the Tribunal, and as such must be left for further consideration at another time and place.
Determination
The Tribunal affirms the decision under review.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for the decision herein of:
Dr J D Campbell, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  7 August 2000
Date of Decision  16 February 2001
Solicitor for the Applicant                Mr B Winship
Advocate for the Respondent        Ms M Doggett