Nicholson and Repatriation Commission
[2005] AATA 1167
•25 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1167
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1333
VETERANS' APPEALS DIVISION ) Re KIM NICHOLSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly and Member, Dr Pat Lynch Date25 November 2005
PlaceSydney
Decision The reviewable decision is affirmed.
[sgd] Senior Member, Mrs Josephine Kelly
Presiding Member
CATCHWORDS
VETERANS’ APPEALS – disability pension – claim for agoraphobia, schizoid personality disorder and social phobia – operational service in Namibia – history of excessive alcohol consumption - numerous psychiatric opinions – not suffering from generalized anxiety disorder – diagnosis of personality disorder and alcohol abuse –personality disorder not defence caused - alcohol abuse not defence caused – decision affirmed.
LEGISLATION
Veterans Entitlement Act 1986 sections 70, 120 and 120A.
CASELAW
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Cooke (1998) 160 ALR 17.
Repatriation Commission v Stoddart [2003] FCAFC 300REASONS FOR DECISION
25 November 2005 Senior Member, Mrs Josephine Kelly and Member, Dr Pat Lynch Introduction
1. Mr Kim Nicholson rendered operational service as a peacekeeper in Namibia from 13 April 1989 until 30 September 1989. He seeks the review of the decision made by the Repatriation Commission (“the Commission”) on 19 March 2003 to refuse his claim for a disability pension for disabilities that have not been previously accepted as service related (T2). The claim was for “agoraphobia”, “schizoid personality disorder” and “social phobia” arising from his period of operational service in Namibia (T21). The diagnosis found was personality disorder. In the review by the Veterans’ Review Board (“the VRB”) made on 20 August 2004 the diagnosis was varied to personality disorder with features of generalised anxiety disorder and alcohol abuse, and the primary decision was affirmed (T28).
The Issues before this Tribunal
2. The case for Mr Nicholson was put to this Tribunal on the following bases:
(a) Mr Nicholson’s operational service caused a clinical worsening of pre-existing Generalised Anxiety Disorder (“GAD”);
(b) The clinical worsening of his GAD caused the clinical worsening of his pre-existing Alcohol Abuse.
(c)Alternatively, his operational service otherwise cause the clinical worsening of his pre-existing Alcohol Abuse.
3. The issues for determination are:
(a) Does Mr Nicholson suffer from a psychiatric condition?
(b) If so, did his operational service relevantly cause any of the conditions from which he suffers?
4. If Mr Nicholson is successful, the date of effect would be 29 October 2002, a date three months prior to the lodgement of the original claim.
Background
5. The following is uncontentious. Mr Nicholson was born on 21 October 1955. His father was a boat builder and fisherman and most of his family were fishermen in the Tuncurry area. His mother was an alcoholic and his parents divorced when he was in his late teens. When he was growing up the family finances were adequate and all things that he needed were provided. Mr Nicholson attended Taree High School and obtained his Higher School Certificate. At school he felt that he achieved a lot academically and in sporting pursuits.
6. He commenced a course at the University of Newcastle but said he withdrew before completion for financial reasons. He then worked in the liquor industry in Sydney where he trained in poker machine repairs. After four years in Sydney he returned to Tuncurry and worked at the Bowling Club utilising those skills for three years before spending several years fishing.
7. In 1982, Mr Nicholson applied to join the Army but was not accepted after his assessment interview. There was no evidence before the Tribunal why he was not accepted. In 1985 he joined the Army reserve and in June 1986 he re-applied to join the regular Army and was accepted. He served from 25 June 1986 to 29 October 1993. He spent the next two years at Yeppoon fishing, moved to Brisbane for two years and did not work because of his age. He said that he received an early superannuation payment from the Army because he could not find work and moved back to Tuncurry. He stated that he is on a service pension with supplementary disability pension. It is not disputed that he is on a service pension on the basis of invalidity.
8. It is agreed between the parties that Mr Nicholson’s eligible defence service, which occurred before and after his period of operational service, is not relevant to the issues before the Tribunal.
The Current Application
9. Mr Nicholson’s application to the Department which is the subject of these proceedings was received by the Department at the end of January 2003 (T21). In summary his claim was as follows:
(a)Agoraphobia - symptoms “I only leave the house when it’s absolutely necessary. Inside with the door locked is when I feel most at ease.” The cause was “Six months in Africa frayed my nerves past the limit, it was like treading on razor blades all the way.”
(b) Schizoid Personality Disorder - “I refer you to the psychiatric reports by Dr Astill & Dr Sagar”. The cause from his service was “I learned not to trust anyone, not even my own countrymen. I don’t like anyone being behind me. E.g. in a supermarket I’m like a pinball in a machine, 100 mph, in, out & home”.
(c)Social Phobia - He stated that he was not interested in anyone else’s problems, and had enough of his own. The cause related to service was: “Everybody had a job story, whether legitimate or, on the swindle. If they didn’t know how to fend for themselves then they shouldn’t have been picked to go there. Hopeless.”
10. In respect of each condition, he wrote that he had first noticed the symptoms “In Africa 1989”.
Mr Nicholson’s Evidence
11. Mr Nicholson gave the following evidence. He said that he had had trouble sleeping because of noises such as ticking clock, dripping tap, bird life, wind in the trees, and especially later in life. The worst was when he was at barracks in Brisbane after arriving back from Africa at the end of 1989. The difficulty was because of the noise from birds especially, bats and possums. He said his difficulty sleeping started after his return from Africa. He had no history of nervous trouble, depression mental illness or suicide attempts.
12. He said that he drank beer when he entered the Army but felt that he was not a seven day a week drinker. His drinking pattern was to have three or four drinks after work and then he would go home. He would have a drink at lunch if he was working hard. He denied getting into any trouble because of his drinking.
13. While he was fishing before entering the Army he “could have six or seven beers a night but that depended too, a lot of it was night work and you were physically exhausted when you came home, you didn't have much time.” He described working in Newcastle in the summertime “inside the river in front of the steel works, where the industrial grit and the heat from the furnaces is coming”. He would have been in a heavier drinking cycle in Newcastle than Tuncurry. While fishing in Newcastle he denied getting into trouble as a result of drinking.
14. In the Army in 1988 he was described as a “heavy drinker” (T p 56). He said he was drinking because he was playing rugby union with the engineers and they drank after training and after a match which was probably 3 times a week. He would drink six beers after a match.
15. Mr Nicholson said that he had three charges before he left basic training. These were for minor insubordination but from when he finished basic training until 1991 he did not have any problems with discipline.
16. He described what had happened when a record of his suffering from a one night anxiety episode was made on 14 July 1988. He had visited his dying aunt who was in bed. His mother and sister were crying. “It didn’t seem an appropriate place for me to be. I got out of there.” He said he had seen dead people and that did not affect him. There’s nothing that can be done. Someone lying in bed awaiting the inevitable is worse. He was prescribed Diazepam for the first time. He listed a number of drugs in the same family which he said he had taken over the years. Throughout his evidence, he demonstrated a detailed knowledge of various sleeping medications.
17. He described his duties while in Namibia as a “supply man”, which meant that he did what was necessary to keep everyone on the road and in the field with rations, boots, clothing, weaponry and ammunition. He had to go out of the barracks up to the Angolan border and stay overnight. When told there were no medical records for his period in Namibia and asked whether he had any medical consultations during that period he said “I must not have”. He described the debrief on his return and his increasing anger about receiving three or four sets of papers containing a questionnaire, over a two year period. They included a statement that people were selected at random and “we do not know who you are”. There was a “big red serial number” on them. Mr Nicholson did not believe he was anonymous, became very angry and prepared a letter which an officer persuaded him not to send.
18. He said that he answered a question “Do you go about your daily business in the same manner as two years ago? “less than usual” because his behaviour was starting to deteriorate. He was erratic and lost heart with a lot of things. He did his job “but something had clicked or snapped, the nerves, probably taking more tablets, the sleep factor. There were a number of factors that contributed to me going downhill”.
19. He was asked about the incidents that occurred in Namibia that he had told the VRB about. He described how he thought that he had saved a negro boy from being sodomised or killed by some white men whom he told to get away from the boy. He was angry and irate. He thought he had done the right thing.
20. He said that when he was in a truck, he was flagged down by a man who verbally abused him and whoever was with him, accusing “you soldiers” of causing trouble and terrifying the local people. Mr Nicholson said “Oh, calm down, man, calm down, I just don’t need this”. He did not like being accused of such things which were wrong. There was an accident further up the road. Mr Nicholson had put a bullet in the breech of his rifle because he did not know what was up ahead, or who the man or his offsider were, and the man may have had something in his pocket. He said his reaction was “Who is this guy?” You do not expect that to happen to you.
21. The next incident was seeing a dead negro man lying in a pool of blood “his eyes were open”. He told the driver to keep going, “I’ll never forget that set of eyes”. His reaction was shock, fright, it’s hard to say, impossible to say how long he’d been there. In cross examination he was asked why he had not told Dr Roberts that the negro man was lying in a pool of blood. He said that it had been an oversight and acknowledged that the injury could have been the result of a motor vehicle accident or of being shot.
22. He described seeing a young serviceman with bandaged hands who had lost the tips of both thumbs while defusing a mine. He felt pity as the serviceman was young, less than 21, with his life ahead of him.
23. On hearing of a Kenyan or Ugandan being blown up by a phosphorous bomb, his reaction was “fright again”. He was burned to death “a horrid way to expire”. He knew that seven people, five Finns, one Canadian and this man, had been killed and “the thought’s always on the back of your mind, am I the next one?” He thought the Finns had been ambushed and knew that the Canadian had been.
24. The final incident was seeing a photograph of a small child who had trodden on a mine. He agreed he found it gruesome and described it as a coward’s way of fighting.
25. When asked about his description to the VRB of his feeling that he was walking on razor blades as soon as he arrived in Namibia, he went on to describe the threat of walking on mines and their effect. He said he felt like that whenever he left the barracks which varied from twice a week to twice a month.
26. His last two weeks in Namibia were the worst. He was scheduled to leave on a flight but swapped with a friend. They were the slowest weeks and he thought that he had come that far and could not let anyone get hold of him then.
27. He said that after his service in Namibia, his state of mind got worse. From early 1990 to 1992 he got very angry over some things. His behaviour was more erratic and he was concerned about a possible trip to Somalia or Cambodia. He lost heart with things and something had snapped where he became more nervous. He began taking more tablets and he lost a lot of sleep. By mid 1991 he was jumpy. A car backfiring sounded like a gun. By the end of his service, he said if a parade was on, he would be given something else to do.
28. Mr Nicholson appeared before the Tribunal wearing sunglasses, which he immediately explained was necessary because of his accepted disability of pterygium of both eyes. He offered to remove them if they gave offence. He also drew the Tribunal’s attention to the fact that while he waited to give evidence he had sat in the hearing room with his back against the wall so he could see the door. He does that on buses. He does not like anyone behind him. Mr Nicholson sat in a similar position during the medico-legal consultations as reported by both Dr Dinnen and Dr Roberts, and when he saw Dr Gibson.
29. Mr Nicholson gave evidence and made submissions throughout his oral evidence. He was articulate, forthright and assertive. He did not appear at all anxious while giving evidence or at any other time during the hearing.
Army Service Records
30. Mr Nicholson’s Army service records (T3 pp 60 to 62) establish that he had 3 disciplinary incidents during his training in 1986. He then joined the Army Engineers and was trained as a Storeman and later as a driver. No further disciplinary action is recorded until 26 October 1992, that is 6 years after he joined and more than 2 years after he left Namibia. On 18 March 1991 he withdrew from the Junior Leaders Course which may have led to a promotion. That was at the time his step-brother died, as set out below.
31. There were further offences in May, June, July and September 1993. The last comment on the file when he was discharged is “Retention in the army not in the interest” and “using drugs of addiction”.
Medical Evidence
Army Medical History
32. The medical evidence from his period of Army service falls in to two categories, before and after Namibia. There is no medical evidence from the period during his service in Namibia.
Before Namibia
33. On 2 June 1986 Mr Nicholson underwent a medical examination to determine his suitability for the Army (T3 p 58). His emotional stability was assessed as normal and the comment “Assured” was made. A further comment is noted of which the first two letters appear to be “Sl” which the Tribunal has interpreted as slightly. The comment then reads: “slightly aggressive. Well-suited to service life.” In the same document he was recorded as being a “beer drinker (weekend social)” (T 3 p 59).
34. In a medical attendance and treatment report dated 28 March 1988, Mr Nicholson is described as a “heavy drinker” (T3 p 56). This is the period Mr Nicholson said he was playing football.
35. In July 1988, visiting his dying aunt upset him greatly and he suffered “Anxiety State” (T3 pp 51, 52, 54, 55). There was no mention of drinking.
After Namibia
36. In Medical Board Examination Records dated 11 February 1991 (T3 p 48), 12 May 1992 (T3 p 22) and 12 October 1993 (T3 p 7). Mr Nicholson’s “nervous system”, “emotional stability” and “mental capacity” were recorded as “normal”. The report of 12 May 1992 reports that: “Has had episodes of worry. Now settled.” (T3 p 22).
37. On 4 March 1991, a Medical Attendance and Treatment Report reports that Mr Nicholson “Can’t sleep. Contracted ‘GARDIA’ in Africa in ’89. Can go days without sleep.” (T3 p 47) When asked about this at the hearing, Mr Nicholson said that he had recovered from the Giardia (which causes diarrhoea) in early 1990. When he was in the barracks at Brisbane, Mr Nicholson explained that he was having problems sleeping because of noises at night occurring outside the barracks.
38. Mr Nicholson has had a problem sleeping and has had an ongoing prescription for the family of drugs including diazepam. Diazepam is used to manage mild to moderate degrees of anxiety. There are references to him being on prescribed drugs for sleeping problems from 1988 until January 1993 (T3 pp 54, 42, 26, 23, 19, 47 and 18).
39. In April 1991 Mr Nicholson’s step-brother died suddenly, and he went AWOL from a course he was doing because he was apparently not permitted leave and was charged (T3 p 43). The note referred to his absence for a few hours, having had a few drinks, “tough chap, likes his drink, short fuse but good worker”. This incident led to a referral to a psychiatrist, Dr Chalk, in June 1991 (T3 p 41). He found “No evidence of major psychiatric disorder esp. no paranoid illness or mood disturbance”. The doctor recorded a longstanding personality problem which was not incompatible with service and significant alcohol consumption (6-7 stubbies / day).
40. Mr Nicholson was clearly anxious about the charges and waiting for that report. A note dated 11 June 1991 states that he had Personal problems, drank alcohol last pm (lots) (T3 p 42). In oral evidence Mr Nicholson said that at this time he knew he was going badly. Promotion was lost to him. He said he made a mistake and went outside barracks and was charged for that. He commented that they were trying to drive him mad. He was sliding downhill. It seems that the charges were not pursued as they are not recorded in his service record (T 3 p 62).
41. On 19 September 1991 Mr Nicholson suffered “Anxiety – recurrence” and was prescribed continuing medication (T3 p 27). Mr Nicholson did not recall this occasion.
42. On 28 January 1992 he requested sleeping tablets because he could not sleep. He reported having had a brush with a shark at Bribie Island two days before “Has had ‘jitters’ since then” (T3 p 26).
43. In 7 February 1992 he reported difficulty sleeping and that he had money worries (T3 p 24). He was prescribed Normison on his second visit (18 February 1992, T3 p 23). In oral evidence Mr Nicholson said that he was worried about his mother “being sharked by real estate people”, and not getting a sufficiently high price for a block of land she was selling. He said that every problem is an added complication and everything upsets him. His concentration is affected.
44. On 10 July 1992 Mr Nicholson was worried about not receiving an inheritance and “got on the grog.” Mr Nicholson however “does not think he has a problem with C2H5OH “ (alcohol) (T3 p 21).
45. On 2 November 1992, and 24 December 1992 Mr Nicholson reported anxiety related symptoms (T3 pp 19, 20). On 2 November 1992 Mr Nicholson was on a charge for arriving at work drunk when he attended a doctor saying he was sick and wanted ‘to go on a “drying out” course - to give up alcohol’ (T3 p 20).
46. On 25 December 1992, he was admitted to the Military Hospital for 5 days for “anxiety state, social problems” (T3 p 18). He had lost his Valium tablets in the wash and was having problems with his flat mate. He was taking Valium for his nerves at that time. He was discharged on 30 December 1991. His agitation had improved and he was able to work out his accommodation problem.
47. In a referral dated 10 May 1993 the doctor said that Mr Nicholson had seen him because he “sustained a head injury whilst under the influence of alcohol. He admits to weekly binge drinking. Says he’s never been offered an attempt at alcohol rehab. … He is obviously a ‘nervy’ man and appears haunted by various unspecified Shades. Referred to various traumatic events which occurred while in Africa. Perhaps these should be explored and assessed before he leaves the Services for good” (T3 p 12).
48. On the same page but dated 17 May 1993 were comments from another doctor who said “He is a problem soldier with many episodes of problems, violent behaviour, AWOL and all related to alcohol excess. I have offered him alcohol rehab but he refused to undertake it”.
49. On 8 June 1993, Mr Nicholson was reassessed by Dr Chalk, psychiatrist (T3 page 11). The doctor reported:
“Previously seen 1991. Personality disorder (with) Alcohol problems predominant which he appears not to want help for. Is again on charges & as previously is fit for trial. However, has shown over last 2 years that his personality is unfit for service.
He should I think at least be offered treatment for Alcoholism, though there is no desire to change that I can detect. He is not depressed or have any other psychiatric illness.”
50. An outpatient record dated 13 September 1993 records:
“1 day diarrhoea following drinking spree. PH of Giardia Lambia from Nambibia (sic)” ... Actually diarrhoea on and off last few years now [since 1989] … O/E Anxious. Fed up. Flushed” … Impression (1) Acute alcohol induced gastritis … (2) Exacerbation of longstanding diarrhoea” (T3 p 9).
51. In a medical attendance and treatment report of the same date is a note:
“long history alcoholism. “Very heavy drinking over weekend – 30 cans – vomiting - 1 today; diarrhoea – 2 days” (T3 p 14).
52. In a medical attendance and treatment report dated 24 September 1993 the following notes appear: “feels very stressed, anxious, shaking, nausea. Felt dangerous driving” … “anxiety” It was recommended that he take sleeping tablets. (T3 p 10)
53. On his discharge medical report dated 6 October 1993 it was noted that he was a “heavy drinker” and that he had suffered from “nervous trouble” and “severe depression” “Generally assoc. (with) trauma” (T3 p 8). At the hearing Mr Nicholson said that at that time he drank 7 to 8 cans 5 nights a week, although he was at Randwick for 4 days before his discharge and did not drink. The report also stated that Mr Nicholson answered “yes” in response to the parts of question No. 37 “Have you ever had or are you now suffering from” “(a) Nervous trouble”, and (b) Severe depression” (T3 p 8). In the same question he answered “no” in respect of “mental illness”. In his oral evidence, he said that his positive response arose from the trauma of being on the other side of the world for three months and not knowing whether or not you are going to come home. He said that since he had returned from Namibia he had had trouble sleeping.
Previous Claims and Associated Psychiatric Opinions
54. Mr Nicholson has claimed unsuccessfully on three previous occasions, in 1994, 1996, and 1997, for psychiatric conditions caused by his service in Namibia.
55. In 1994 he claimed for “anxiety and depression” and “nerves and stress” caused by his duties and traumatic events in Namibia (T4). His medical practitioner noted “poor sleep pattern, lack of confidence”. Dr Adams, psychiatrist, referred to a history of 26 years of drinking, problems with heavy alcohol use which consumed most of his finances when available but noted that he was not drinking heavily recently because of his limited finances (T6). That doctor’s opinion in the absence of details from the Department of Veterans’ Affairs was:
“on the basis of the history given, cannot rule out a contribution from his military service, particularly that in Namibia to his claim for anxiety, depression, nerves and stress. It is likely that his personal tendancy to alcohol abuse has been exacerbated by some components of his military service”.
56. Apart from that conclusion, the only reference in the report to what happened during Mr Nicholson’s service in Namibia was: “After service in Africa where he was involved in a non stimulating job as a storeman and a bar man he felt disillusioned with the services and suffered some anxiety”.
57. In 1996 he claimed for “post traumatic stress disorder”, “anxiety and depression” and “psychoactive substance abuse” (heavy drinking) caused by stressors of service in Namibia. Dr Evans, psychiatrist, saw Mr Nicholson at that time (T11). His symptoms were panic attacks and that he was quite housebound. The diagnosis was “Panic Disorder with Agoraphobia (?Social Phobia)” (which were manifestations of “some Anxiety Disorder”) and “Substance Abuse and Dependence.” Dr Evans does not provide a cause of the conditions. He noted that Mr Nicholson had quite an unusual personality, smelt strongly of alcohol and suffered insomnia following a motor vehicle injury.
58. In 1997 Mr Nicholson claimed for “post traumatic stress disorder” brought on by various traumatic incidents during his service in Namibia which he listed (T14):
·“Negro man, pool of blood around his head – cause unknown to me but looked like a gunshot, no clothes torn or limbs broken to my eyesight”
·“Cocked rifle – flagged down by 3 men (2 negro, 1 white) – accident somewhere up ahead. White (Afrikanner) man started carrying on about us soldiers coming here & terrorising the natives, he’d been here 30 years campaigning for human rights – really nasty & aggressive. What about my human rights? He got the message.”
59. Dr Gibson, psychiatrist, saw Mr Nicholson for the purpose of this claim (T17). The history given was:
·.”never been the same ever since I went over there”
·mood swings, anger outbursts, difficulty falling/staying asleep, on edge, hypervigilance, easy startle.
·disturbing dreams related to his service in Namibia (sees bodies and dreams of killing a white Namibian); intrusive memories of his Namibian service and occasional dissociative flashbacks.
·avoidance of reminders of his service (reunions, conversations), emotional detachment, restricted range of affect, loss of interest in previous activities.
·panic episodes characterised by palpitations, hyperventilation, pacing, tremor, apprehension lasting several minutes and occurring 2-3 times/year. Agoraphobic symptoms related to crowds, shopping centres, public transport and bridges.
·alcohol abuse – says he began drinking heavily in the ARA, leading to work problems and interpersonal conflicts over the years. He says his current intake is an occasional binge every 1-3 months. He also reports a past history of benzodiazepine abuse. He says he is currently taking temazepam 10mg iv nocte.
60. During his service in Namibia “he saw bodies and knew two fellow servicemen, one of whom was hit by a phosphorous bomb and the other who lost the tips of both thumbs with a mine. He … felt vulnerable and that his life was at risk during his trips north.”
61. Dr Gibson diagnosed “PTSD with comorbid benzodiazepine abuse, agoraphobia and subsyndromal panic” and noted that a past history of alcohol abuse is now largely in remission “except for occasional binges”.
62. Mr Nicholson saw Dr Richard Astill in Brisbane on 6 February 1997. The report was addressed to the Commonwealth Medical Officer and related apparently to a Centrelink benefit (T28, p 140). He notes that Mr Nicholson was a difficult historian, suspicious and difficult to obtain information from. Mr Nicholson said that he avoids people and feels people stare at him when he is out, spends 90% of his time in his flat and feels settled then, “He believes the problems started in early adult life and have got progressively worse”. “He describes not getting on with people in his various jobs” and “he left the army before they got rid of him”. He has only had a couple of short jobs since. He describes being a heavy drinker in past years but “is moderate in his intake now”. There is no reference to service in Namibia or any incidents during his service.
63. Dr Astill’s diagnosis was “Schizoid Personality Disorder complicated by agoraphobia and social phobia. He is not fit for work full time or part time. His impairment is one of a long term and enduring nature”.
Alcohol Questionnaire
64. An Alcohol Questionnaire signed by Mr Nicholson on 31 October 2002 was in evidence. There was no evidence of how or why this came into existence and apparently bears no relationship to the application made in January 2003. It included the following information (T20). He began drinking in 1974, he drank beer 2-3 times per week and on each occasion consumed “6 x 10 oz”. He ticked the box indicating that his alcohol consumption had changed significantly and provided the following details:
The Services are a trap for alcohol because it’s so cheap, & after being in Africa for 6 months a drink was an easy option.
65. In response to the questions relating to “Do you still consume alcohol?” he stated yes, that he drank beer 2-3 times a week and consumed “6 x 10 oz” on each occasion. That is, he provided exactly the same level of consumption as to when he began drinking.
Dr Sagar’s Assessment
66. Dr Sagar of Health Services Australia saw Mr Nicholson in Newcastle at the end of 2002 for assessment in relation to a service pension (T28 p142). Mr Nicholson said that his mental health problems started in Namibia “I saw African men twirling revolvers like Audrey Murphy … I could have got one in the back of the head … (implies danger”).He felt people were staring at him. He reported a drinking pattern of 6 middies or 4 cans a day for the last five years but when he was in the Army he would drink at least a dozen stubbies a night for months at a time. The doctor provides the following diagnoses:
DSM IV Diagnosis
Axis 1 – Alcohol Abuse and Dependence – heavier in the past Post Traumatic Stress Disorder?
Axis II – Disorder of Self – main diagnosis; predominantly narcissistic, avoidant, and schizoid traits
67. Dr Sagar questioned Dr Astill’s diagnosis because there was not a history of no attachments to people, and it was unlikely a person with Schizoid Personality Disorder would have achieved the accolades he had in a Year 10 report and the good reports he received during part of his time in the Army. People with schizoid personalities are usually loners.
Medical Evidence Specific to the Present Claim
68. The principal medical reports relied on by the parties were those of psychiatrists Dr Roberts (Exhibit R1) and Dr Dinnen (Exhibit A1). Both doctors gave oral evidence.
Dr Dinnen
69. Mr Nicholson was examined by Dr Dinnen for medico-legal purposes on 2 February 2005. Mr Nicholson claimed that the six months that he spent in Africa has resulted in him never being the same man since. He described his time in Namibia, including:
·“It is a very serious business carrying a gun. You see dead bodies.” He said five Finns, one Kenyan and one Canadian had died. They had been shot dead. He used to think “am I number 8.”
·The incident with a 13 year old Negro boy whom he saved from two white men.
·Being poked in the chest by a man and putting a shell in the breach: “He got the message”.
·The final two weeks were the worst because he was supposed to have finished his service in Namibia but instead had to remain for a further two weeks when he should have been home and safe. He felt that he was always looking over his shoulder and he has been doing this ever since.
70. In coming to his diagnosis, Dr Dinnen took into account Mr Nicholson’s current symptoms, his mental state, the history given and a review of documentation from service and psychiatric reports.
71. Mr Nicholson told the doctor his symptoms included sleep disturbance, a phobia of being with other people, feeling apprehensive and guarded, jumping easily, and worrying excessively and twitching in his head. His memory and concentration were all right and he had no depression.
72. Dr Dinnen recorded that at interview Mr Nicholson chose to sit on a couch facing the door, wearing sunglasses throughout the interview, and gave a disjointed account. Information had to be obtained by direct questioning but it was difficult to interview him and his responses “tended at times to be tangential and overinclusive”.
73. Mr Nicholson said that his conduct had been deplorable in the last two years in the Army and that he did not fit it.
74. Dr Dinnen’s opinion was that Mr Nicholson had an underlying personality disorder and that there are currently some schizoid and paranoid features. He noted that this condition was not evident at the time he enlisted in the Army. He continued:
This personality disorder might equally well be explained by agoraphobia, which is a diagnosis favoured by a number of the psychiatrists who have examined him. Nonetheless, the bizarre and odd quality to his presentation must be considered significant. I have seen such a level of disorganisation in patients with severe chronic anxiety disorder, and I agree with others who have observed that there are no formal features of psychotic illness evident now or in the past. The (sic) clearly was an anxiety disorder present during service and this was complicated by alcohol abuse.
It is not unreasonable to consider that his period of service in Namibia was stressful, and I do not agree with the … assessment of this service as being of such a low level as not to be likely to cause a psychiatric disorder in a vulnerable individual.
Accordingly, it is my conclusion that the simple diagnosis of best fit is that of generalised anxiety disorder associated with panic disorder and agoraphobia. During service he could be considered as suffering from this condition which led to alcohol abuse.
75. In cross-examination Dr Dinnen agreed that both the anxiety disorder and alcohol abuse were present before Mr Nicholson went to Namibia (Transcript p 84 line 39). He also acknowledged that although he diagnosed panic disorder he did not get a history of it, but made the diagnosis because of other reports which had made that diagnosis (Transcript p 85 ll 20 to 22).
76. He disagreed with Dr Roberts’s view that anxiety cannot be diagnosed without physiological features (Transcript p 75 ll 39-40). He considered that was an idiosyncratic view which did not appear in the text books and was not relied on by other psychiatrists. Such symptoms are not necessary for diagnosis; they may or may not be present. Dr Dinnen said that “to a large extent what we rely on is the patient's subjective account of his emotional state,” and he did so in this case. If the physiological symptoms are present “it’s certainly in keeping with the diagnosis, and certainly points to a more severe condition”, although he considered it more common in panic disorders rather than in generalised anxiety (Transcript p 77 ll 6 to 10).
77. In the same passage of evidence, Dr Dinnen said:
“The DSM IV and the text books and common usage has anxiety disorder as being general worrying, sleep disturbance, apprehensive feelings, a subjective feeling of tension, maybe some impairment of memory and concentration and those things are important to address” (Transcript p 77 ll 10 to 14).
78. Dr Dinnen explained Mr Nicholson’s non-reporting of incidents in Namibia by stating that they would upset him and other veterans. He felt that it was a big mistake to assume that the problem does not exist before they mention it. From his experience he felt it was more common that they do not mention it and the story comes out gradually as it becomes easier to talk about it.
Dr Roberts
79. Dr Roberts examined Mr Nicholson for medico-legal purposes on 7 March 2005. He was requested to consider the conditions of Personality disorder, Anxiety disorder and Alcohol Abuse. He reviewed the “T documents” and took a detailed history.
80. Dr Roberts asked Mr Nicholson to provide details of things that concerned him during his time in Namibia. Mr Nicholson included the following:
·Once when he had to go into a pitch black room and he did not know what was there.
·The soldiers that were sent to Namibia were incompetent and more good could have been done if the quality of soldier sent to Namibia had been better.
·The incident when a man had waved down a truck that Mr Nicholson was in and he put a shell in the breach and the other person got the message. On this retelling, Mr Nicholson said he was poked in the chest.
·An incident where seven servicemen were killed. He did not witness their deaths but commented that he thought he could be number 8.
·The incident where he had prevented a “group of whites” from taking a negro boy.
·That he had to remain for a further two weeks because he swapped with a friend which caused concern as felt that he should not have been there.
·That he saw a dead man on the road, whom he believed died as a result of a motor vehicle accident.
81. Dr Roberts comments that:
“I am unable to conclude on the basis of Mr Nicholson’s statements that there was anything in regard to his service in Namibia that could conceivably give rise to a psychiatric illness. I note his account of having to prepare his weapon in regard to an argument that occurred with a man and the seeing of a dead man on the road – neither incident although potentially distressing were related in a manner that suggested that they were regarded as being of significance.”
82. In relation to Personality Disorder, Dr Roberts found that Mr Nicholson appeared to have been functioning reasonably normally at least into the third decade of his life which precludes that condition by definition. Both the Statement of Principles (“SoP”) Instrument No. 13 of 1997 clause 2(d) and DSM IV requires a stable pattern of long duration with onset being able to be traced back to at least late adolescence or early adulthood.
83. In relation to Anxiety Disorder, Dr Roberts considered that he “does not display any evidence of heightened anxiety of inappropriate degree”.
84. Dr Roberts concluded that Mr Nicholson had no clinical symptom of heightened anxiety. The doctor’s opinion was: “All neuroses without exception are characterised by heightened inappropriate anxiety, which in turn gives rise to the inevitable physiological concomitants of such a state”. In the absence of such symptoms, there was no diagnosis of anxiety disorder.
85. Doctor Roberts referred to the SoP Instrument No. 2 of 2000 factor (5a)(i) which make it necessary for the person to experience a severe psychosocial stressor within one year immediately before the clinical onset of anxiety disorder. This is an SoP for eligible service not operational service. The doctor could not identify a severe psychosocial stressor in his military service. His opinion was that a severe stressor needs to cause intense fear, helplessness or horror. It needs to be an intense experience rather than feeling anxious.
86. Mr Nicholson gave to Doctor Roberts a history of alcohol dependence and alcohol abuse which in the doctor’s opinion predated his military service. Mr Nicholson initially claimed to the Doctor that his alcohol abuse commenced when he was in the Army but then stated that when he was in his early twenties and working in the liquor industry he often used to get drunk. Dr Roberts’ comment is that “there is clear and unequivocal evidence therefore that Mr Nicholson’s excessive alcohol ingestion predated his military service.”
87. Dr Roberts’s diagnosis is “substance abuse disorder relating to inappropriate use of alcohol.” He was unable to satisfy himself that a DSM IV diagnosis exists for any other condition. He concluded that there was no evidence of a personality disorder or anxiety disorder.
Legislation
88. The claim falls for consideration under section 70 of the Veterans Entitlement Act 1986 (“the VEA”).
89. The connection required between Mr Nicholson’s conditions and his Peacekeeping service is that of the “reasonable hypothesis”, as outlined in subsections 120(2) and 120(3) of the VEA, as affected by section 120A. We must find that the injury or disease was “defence-caused” unless we are satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s 120(2)).
Consideration
90. We have set out the various psychiatric opinions in evidence. A report from a Dr Michael Robertson was before the VRB but not before this Tribunal. Apart from the assessments carried out by Dr Chalk during his Army service and by Dr Astill, the psychiatric assessments have been carried out in the context of Mr Nicholson’s claims for disability pension relating to his service. We accept the diagnosis of Alcohol Abuse which existed prior to service which is agreed by Dr Dinnen and Dr Roberts. There is a preponderance of other evidence supporting such a diagnosis in the material we have referred to. The more difficult question is does Mr Nicholson suffer from any other psychiatric condition?
91. In order to address that question, it is necessary to set out our findings on Mr Nicholson’s evidence, as the various doctors have made their diagnoses based on what Mr Nicholson has told them. We found Mr Nicholson’s wearing sun-glasses during the hearing and particularly his drawing our attention to his seating position in the room, to be contrived behaviour. He was confident and articulate. He exhibited no indication that he was anxious. He tended to give tangential answers to questions and confuse temporal associations. His evidence did not persuade us that he suffered anxiety as a result of the incidents he recounted in Namibia, either at the time or when he came back. The best way of describing Mr Nicholson’s recounting of the incidents to us was that he was detached. The number of incidents he has recounted has grown over the years and his story has varied over the years in the context of his various applications. We do not consider Mr Nicholson’s evidence reliable.
92. Does Mr Nicholson suffer from GAD? A diagnosis is to be made on the balance of probabilities (s 120(4) of the VEA,,Repatriation Commission v Cooke (1998) 160 ALR 17).
93. We do not accept that Mr Nicholson suffers from GAD. We do not find Dr Dinnen’s diagnosis persuasive. His development of a diagnosis set out in detail above strains logic to come to the particular diagnosis which is related to his service in Namibia. Mr Nicholson’s reactions to his service in Namibia did not demonstrate symptoms of anxiety. Dr Dinnen acknowledged that he included panic disorder in his diagnosis despite Mr Nicholson’s having given him no such history. He incorporated in his diagnosis that of other doctors based on a different history. The reports of Dr Evans and Dr Gibson were made when Mr Nicholson was claiming for conditions including Post Traumatic Disorder. Mr Nicholson gave no evidence of panic attacks at the hearing before this Tribunal, or to the VRB.
94. Having considered all the material before us, we find that the appropriate diagnosis is Personality Disorder..
95. The diagnosis is supported strongly by Dr Chalk’s opinion. He had the benefit of seeing Mr Nicholson on two occasions in the early 1990s which were not in the context of a claim for compensation, The first time was in June 1991 after Mr Nicholson’s difficulties following the death of his step-brother when he found “No evidence of major psychiatric disorder esp. no paranoid illness or mood disturbance” and recorded a longstanding personality problem which was not incompatible with service and significant alcohol consumption (6-7 stubbies / day). However, in 1993 Dr Chalk diagnosed Personality Disorder with Alcohol problems predominant (T3 page 11).
96. Further support is found in Dr Astill’s diagnosis which is similar to Dr Dinnen’s diagnosis of personality disorder (“underlying” with “some schizoid” features).
Is there an hypothesis linking his service with the diagnosis of “Personality Disorder”?
97. As set out at the beginning of this decision, although the claim the subject of these proceedings included “Agoraphobia”, “Schizoid Personality Disorder” and “Social Phobia” the case was not directed to those conditions but to GAD and Alcohol Abuse. One might infer that there was a concession that Mr Nicholson could not succeed in relation to the claimed conditions. However, given the claim made, we consider it appropriate to apply the analysis set out in Repatriation Commission v Deledio (1998) 83 FCR 82 to the diagnosis we have found..
98. We find that the material before the Tribunal does not give rise to an hypothesis linking Mr Nicholson’s service with the clinical onset or worsening of the condition of Personality Disorder during service. There is no material pointing to an hypothesis that this condition was caused or exacerbated by his service. It is therefore unnecessary to take the analysis further. However, for completeness, if one follows the legislative scheme, there is an SoP (No. 143 of 1995 as amended by No. 13 of 1997). It requires one of two connections with the circumstances of service, (a) a catastrophic experience that immediately preceded an enduring personality change to the level of disorder, or (b) inability to obtain appropriate clinical management for personality disorder. The material before us is not consistent with this template and accordingly fails at that level also. We do not consider it necessary to proceed further in relation to this diagnosis.
Is there an hypothesis linking his service with the clinical worsening of his Alcohol Abuse?
99. We have to determine whether Mr Nicholson’s Alcohol Abuse was linked with his service. The material set out above raises the following hypothesis. Mr Nicholson’s drinking habit was exacerbated by the incidents that occurred during his service in Namibia. His evidence was that he had no trouble during his work caused by his drinking before his Army Service. There is a report on 28 March 1988 describing him as a “heavy drinker” (T3 p 56). In June 1991 Dr Chalk referred to significant alcohol consumption (6-7 stubbies a day) (T3 p 41). This was after his step-brother’s death. The first record of his drinking impacting on his work in the Army is 2 November 1992 when he was on a charge for arriving at work drunk. Thereafter there are various records during his remaining service which refer to his drinking heavily and that it was impacting on his work.
Is there a Statement of Principles?
100. There being an hypothesis, is there an SoP? The relevant SoP for Alcohol Dependence or Alcohol Abuse is Instrument No. 76 of 1998. Factor 5(d) was relied upon in the Applicant’s case: “experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse”.
101. However in our opinion, factor 5(e) is also raised, “inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse”. This is raised by the document Medical Attendance and Treatment by Dr James at T3 p 20 and by Dr Ash at T3 p 12.
Is the hyphothesis consistent with the SoP?
102. The material as summarised above is consistent with factors 5(d) and 5(e) of the SoP.
Is it proved not to be war-caused beyond reasonable doubt?
103. We are satisfied beyond reasonable doubt that factor 5(d) was not satisfied. Mr Nicholson’s drinking pattern was well-established before he went to Namibia, while fishing on the Hunter River before entering the Army and when playing football while in the Army. Dr Chalk’s note in June 1991 of his drinking pattern which is just within the two year period referred to by factor 5(d), is consistent with his evidence of drinking before his operational service. His Alcohol Questionnaire reinforces this conclusion. Dr Dinnen said in his oral evidence that there was little evidence of clinical worsening. There is no evidence of his alcohol intake affecting his work performance until 2 November 1992.
104. Further, we are satisfied beyond reasonable doubt that he did not experience a “severe stressor”, as defined while on, operational service. See also Repatriation Commission v Stoddart [2003] FCAFC 300,.
105. We are also satisfied beyond reasonable doubt that there was no inability to obtain appropriate clinical management for his Alcohol Abuse. Rather he did not want assistance (T3 p 12,) It is also recorded in his service records that he did not think that he had a problem with alcohol (T3 p 21) and there was no desire to change his drinking habits (T3, p11).
106. For completeness, we note that as we have found the other psychiatric condition which Mr Nicholson suffers was not defence caused, factor 5(c) does not arise for consideration.
107. We are satisfied beyond reasonable doubt that Mr Nicholson’s Alcohol Abuse is not defence-caused
Decision
108. For the reasons set out above, we affirm the decision under review.
I certify that the 108 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly and Member, Dr P. Lynch
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 29 June 2005 and 16 September 2005
Date of Decision 25 November 2005
Counsel for the Applicant Mr M. Vincent
Solicitor for the Applicant Legal Aid Commission
Counsel for the Respondent Mr G. Doube
Solicitor for the Respondent Department of Veterans' Affairs
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