Parkes and Repatriation Commission
[2006] AATA 405
•10 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 405
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/239
VETERANS' APPEALS DIVISION Re GREGORY PARKES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Professor I. Shearer Senior Member
Dr M E C Thorpe, MemberDate10 May 2006
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] Professor I Shearer. Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – whether Applicant suffers specific phobia or any other psychological condition – medical evidence – decision under review affirmed.
Veterans’ Entitlement Act 1986
Benjamin v Repatriation Commission (2001) 64 ALD 411
Repatriation Commission v Cooke (1998)160 ALR 17
Thompson v Repatriation Commission [2000] 59 ALD 441
REASONS FOR DECISION
10 May 2006 Professor I Shearer, Senior Member
Dr M E C Thorpe, Memberdecision under review
1. This is an application by Mr. Gregory Parkes (“the Applicant”) for review of the decision made by the Repatriation Commission (the Commission) as affirmed by the Veterans’ Review Board (VRB) on 17 January 2005 that the Applicant’s post traumatic stress disorder (PTSD) is not related to his service and that his pension be assessed at 60% of the General Rate.
background of claim
2. On 8 September 2003, the Applicant made a claim to the Commission for a disability pension in respect of incapacity from diabetes, hearing loss, generalised anxiety disorder, motion sickness and impotence. On 19 March 2004, a delegate of the Commission accepted the Applicant’s claim in respect of diabetes mellitus, impotence, and bilateral sensorineural hearing loss with tinnitus, but determined that the conditions of motion sickness and generalised anxiety disorder (treated by the Commission in its later characterisation as PTSD) with major depression were not related to service. The Applicant was granted a disability pension at 40% of the General Rate, with effect from 8 June 2003.
3. On 6 April 2004 the Applicant applied to the VRB for review of the decision of the Commission. On 17 January 2005 the VRB affirmed the decision in relation to PTSD with major depression and motion sickness, but set aside the decision with respect to assessment. The Board determined that the Applicant’s disability pension be assessed at 60% of the General Rate, to operate with effect from 8 June 2003.
4. In the present proceedings before the Tribunal the Applicant did not pursue the claim with respect to motion sickness. However, in the present proceedings the Applicant raised a new ground of claim, namely “specific phobia of a situational type”; fear of enclosed spaces, contributed to, or aggravated by, his eligible war service. Mr Winship, for the Applicant, confirmed that this new ground of claim replaced that of PTSD.
appearances
5. The Applicant was represented before the Tribunal by Mr. B. Winship, and the Respondent by Mr. A. Crowe.
issues
6. The relevant issues before the Tribunal are:
(i)Whether the Applicant suffers from a specific phobia of situational type or any other psychological condition; and if so
(ii)Whether the Applicant’s condition was contracted before the commencement of his eligible service; and if so
(iii)Whether the Applicant’s condition was contributed to in a material degree or was aggravated by his eligible war service
facts
7. The Applicant was born in 1944. He gained his intermediate certificate at Newcastle Technical High School and then trained as a sheet metal worker. He worked for BHP for 18 months before joining the Navy in 1966 at the age of 22. He enlisted because of a lifetime’s fascination with ships and the sea. After enlistment he successfully completed the petty officers’ course and was posted to HMAS Sydney as a shipwright. The Applicant’s period of eligible war service (which is also operational service) extended from 20 December 1967 to 3 January 1968, when he served on HMAS Sydney delivering troops and materiel for service in the Vietnam War.
8. After discharge from the Navy the Applicant took a job at Newcastle as a tinsmith in ships, but had to leave because he found that he could not work in confined spaces. He now works for a firm providing signage for a casino company.
9. The Applicant is married and has lived in the same house with his wife for 20 years. He has two adult children. As a hobby he breeds and shows dogs, although he no longer regularly shows them. He is the president of several dog clubs.
applicant’s evidence
10. In his evidence the Applicant described an incident which he says occurred during a ship training exercise off the coast of Vietnam. He said that during this exercise he was locked into a compartment with four or five other men. The Applicant said that although it was possible to open the door he feared that it may have become jammed in the event of an explosion. He reported his fears to a Chief Petty Officer but was told that “it is just part of the job”. On arrival in the harbour of Vung Tau, where HMAS Sydney stayed only seven hours, the ship went to action stations, as previously rehearsed. The Applicant’s action station was one of the compartments below the water line. He said that, when he was able finally to come out of the compartment, he was a “jibbering wreck”.
11. He told the Tribunal that his greatest fear was of the Americans who were guarding HMAS Sydney during its short stay in the harbour, having previously formed the impression that Americans generally had a “gung-ho” attitude and might themselves endanger the ship.
12. On the return voyage to Australia the Applicant at first felt reasonably well, but was afflicted with seasickness again when passing Christmas Island. He was able to carry out his duties thereafter, although feeling unwell. He was not confined to the ship’s sick bay at any time. However, on arrival in Sydney he was taken directly to the naval hospital at HMAS Penguin by reason of his chronic motion sickness.
13. After his release from RANH Penguin, the Applicant worked as a shipwright at HMAS Penguin until his discharge from the Navy (DPOE) on 7 March 1968.
14. The Applicant told the Tribunal that he is still afraid of confined spaces; for example lifts. By agreement with his current employer he is able to avoid work in confined spaces, such as crawling under benches to service poker machines. He has recurrent dreams involving confined spaces, from which he wakes up in a cold sweat. He then has to get up and take a short walk outside. These dreams began shortly after leaving the Navy. They have continued for 37-38 years. They have intensified since his son joined the Navy and went to sea.
15. The Applicant is less sociable than he once was. His wife considers him moody and easily upset.
MEDICAL EVIDENCE
16. The specific medical question to be addressed by the Tribunal is whether the Applicant has a Specific Phobia of a Situational Type, or any other psychiatric disorder.
17. Medical reports were available from three psychiatrists, Dr Anthony Dinnen, Dr Robert Haik and Dr Graham Altmann. Dr Haik gave oral evidence.
Does the Applicant have a Specific Phobia of a Situational Type?
18. The Diagnostic and Statistical Manual of Mental Disorders, 4th edition (1999) at p.410 (DSM IV) published by the American Psychiatric Association, sets out the diagnostic criteria for 300.29 Specific Phobia (including of the Situational type) as follows:
“A.Marked and persistent fear that is excessive or unreasonable, cued by the presence or anticipation of a specific object or situation (e.g. flying, heights, animals, receiving an injection, seeing blood).
B.Exposure to the phobic stimulus almost invariably provokes an immediate anxiety response, which may take the form of a situationally bound or situationally predisposed Panic Attack. Note: …[children]
C.The person recognizes that the fear is excessive or unreasonable. Note:…[children]
D.The phobic situation(s) is avoided or else is endured with intense anxiety or distress.
E.The avoidance, anxious anticipation, or distress in the feared situation(s) interferes significantly with the person’s normal routine, occupational (or academic) functioning, or social activities or relationships, or there is marked distress about having the phobia.
F. ….[persons under 18]
G.The anxiety, Panic Attacks, or phobic avoidance associated with the specific object or situation are not better accounted for by another mental disorder, such as Obsessive-Compulsive-Disorder (e.g. fear of dirt in someone with an obsession about contamination), Posttraumatic Stress Disorder (e.g. avoidance of stimuli associated with a sever stressor), Separation Anxiety Disorder (e.g. avoidance of school), Social Phobia (e.g. avoidance of social situations because of fear of embarrassment), Panic Attack with Agoraphobia, or Agoraphobia Without History of Panic Disorder. Situational Type (e.g. airplanes, elevators, enclosed spaces).”
19. The only psychiatrist to address phobia directly was Dr Haik. He reported that the Applicant may have a phobia for enclosed spaces but this was plausibly present in some form prior to his enlistment in the Navy. The Applicant had reported to Dr Haik that being a shipwright he was in charge of some five sailors, and that if the ship had been holed he was expected to ‘tack it out. You lock down. I don’t mind telling you I was terrified. I was worried if the doors jammed we’d go down. ‘We were in the harbour at Vung Tau and the Americans worried me’.
20. Dr Haik’s report is the only direct medical evidence before the Tribunal, as to whether the diagnostic criteria for situational phobia were satisfied. Only inferences from the other psychiatric reports could be drawn on this issue, as neither Dr Dinnen nor Dr Altman addressed this question in their reports, and they were not available to give oral evidence.
21. Dr Haik was of the opinion that criteria A and E of DSM 1V were not satisfied. He considered the enclosed space experience of the Applicant, while aged in his 20’s, was constitutional in origin; while the Applicant felt uncomfortable in confined spaces it was not a disabling condition. Dr Haik was of the opinion that the Applicant’s “subsequent discomfort in confined spaces may well be a function of this below deck experience 37 years ago but it is most likely he was weakened by the pre-existing or constitutional condition and that is why experienced personnel may have failed to assuage his uneasiness in enclosed spaces.” Both Dr Dinnen and Dr Haik noted that the Applicant used the lift rather than the stairs, in order to assist his wife at both consultations.
22. Dr Haik thus concluded that there was no diagnosis of specific phobia of situational type satisfying all the criteria of DSM-IV; that the Applicant suffered an aversion rather than a phobia. His conclusions were that:
“There is little distinct objective evidence that Mr Parkes has been impaired by any of his symptoms….Furthermore, he has not consulted a psychiatrist between 1968 and 2004 and he has not required psychoactive medication. He has not reported to his local doctor any psychiatric symptoms….And there is no objective evidence that he has experienced an adverse personality change as a result of his navy service if he has been sufficiently popular or knowledgeable or socially adroit to be elected president of several dog clubs. Overall, Mr Parkes has failed to objectively provide information that might support his claim that his foreshortened naval service has had a detrimental influence on his life. One could only support Dr Dinnen’s proposal, that he has experienced ‘a degree’ of ongoing anxiety disorder, in the context of an avoidance of confined spaces, which has probably been present before naval service.”
Does the Applicant suffer from any other psychological condition?
23. Although Mr Winship for the Applicant argued his client’s case on the basis of specific phobia of situational type, in substitution for the earlier claim based on PTSD, it is desirable for the Tribunal to consider whether the Applicant suffers from the latter condition, or any other psychological condition, attributable to war service, since the application for review to this Tribunal from the VRB concerns that decision.
24. Dr Altman, in his report dated 12 February 2004, listed 13 ways in which the Applicant’s experience in Vietnam had affected him. These closely shadow the description of the condition set out in Statement of Principles (SoP) Instrument No. 3 of 1999:
“1.He suffers from nightmares approximately twice a week. These nightmares began approximately one month after his return from Vietnam….They are mainly about Vietnam - the bombing with napalm in Vietnam….
2.He has recurrent intrusive distressing thoughts about his war experiences….
3. He suffers from flashbacks on an approximately monthly basis.
4. …He avoids talking about his war experiences….
5.He becomes distressed on exposure to some of his war experiences….When he works with Vietnamese people ‘I have to leave the job’.
6. He is much more of a loner.
7. He generally feels detached from others ….
8. He has difficulty showing affection towards his loved ones.
9.He suffers from sleep disturbance. In general his sleep is restless and wakeful.
10. His concentration is poor.
11. He is generally far more irritable.
12. He has an exaggerated startle reaction.
13.He is hypervigilant….When sitting in a room he will tend to sit with his back to the wall.”
25. Dr Altman concluded that “the above-mentioned features are indicative of a chronic war-related Post-traumatic Stress Disorder.” However, Dr Altman’s report did not proceed to consider the factors under the relevant SoP connecting the Applicant’s condition with his Navy service.
26. Dr Dinnen reported on his examination of the Applicant on 30 May 2005. He stated that the Applicant’s account was similar to that obtained by Dr Altman. He continued:
“However, my interpretation of these matters is at odds with his. I do not see this experience in Vietnam as being likely to give rise to a post-traumatic stress disorder, and to that extent I agree with the Veterans’ Review Board. However, it is clear from the patient’s account that he did suffer from anxiety at the time, and he is also clear that his personality changed as a consequence of his experiences in the Navy. No doubt contributing to that change was the fact that the career which he had hoped for had come to such an abrupt and disappointing end because of a constitutional weakness. There is no evidence in the service documents to indicate that his sea sickness difficulties at the time were of psychological or psychiatric nature. Accordingly I believe he does suffer from a degree of ongoing anxiety disorder, and this does appear to have commenced during service, but it cannot be said to have caused major disability through the years….I would not think that any psychiatric treatment is indicated at this time.”
27. Dr Dinnen then addressed the factors under paragraph 5 of the relevant SoP that must be related to service:
“I find it difficult to assert that the patient’s experiences in Vietnam would amount to ‘a severe stressor’. There is no doubt that it was stressful to him, but the definition and terms in the Statement of Principles are strict and have been clearly defined as a result of numerous court cases. While I accept his account that his anxiety commenced during service as a result of these experiences (probably also the consequences of sea sickness) I am not able to state that the Statement of Principles for anxiety disorder (or post-traumatic stress disorder) is satisfied in that regard.”
28. Dr Haik’s report of 28 July 2005 is the last in time. He had the advantage of being able to review the reports of Dr Altman and Dr Dinnen. Also, as noted earlier in these reasons, he gave oral evidence before the Tribunal.
29. Dr Haik concluded from his examination of the Applicant that “his history does not meet the diagnostic criteria for Post-traumatic Stress Disorder or Major Depression. He may have a phobia for enclosed spaces but this was plausibly present in some form prior to Navy enlistment. …One could only support Dr Dinnen’s proposal that he has experienced ‘a degree’ of ongoing anxiety disorder, in the context of avoidance of confined spaces which has probably been present before naval service.” Dr Haik also stated that, in comparing the history given to him by the Applicant, and the histories given to Drs Altman and Dinnen, “various historical contradictions expose some disquiet, and the basis for their existence can only be pondered. Why has Mr Parkes chosen to offer differing versions to different listeners? His memory was not impaired.”
30. Addressing the definition of “severe stressor” in paragraph 8 of the SoP for PTSD, Dr Haik stated:
“None of his concerns while in the Navy were a result of experiencing a severe stressor, that is, he never experienced, witnessed or confronted an event that involved the threat of serious injury or death, or engagement with the enemy, or witnessing casualties, atrocities etc.”
31. It is a clear inference from the reports of Dr Dinnen and Dr Haik that the SoP for Anxiety Disorder (Instrument 1 of 2000) was also not satisfied for similar reasons. The possible relevant factors set out in paragraph 5 of the SoP that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder with the circumstances of a person’s relevant service are:
“…
(i)…;
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
(iii) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder; or
(iv) …;
(v) experiencing a severe a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder; or
(vi) ….;
(vii) having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of anxiety disorder; or ….”
consideration and finding
32. The Tribunal considers that there is insufficient medical evidence to support the contention that the Applicant presently suffers from Specific Phobia of the Situational Type. The Applicant’s case on this point was argued on the basis that a reasonable hypothesis exists that a Specific Phobia of Situational Type was suffered or contracted before the commencement of his eligible war service and was contributed to in a material degree by, or was aggravated by, his eligible war service: section 9 (1)(e)(ii) of the Veterans’ Entitlement Act 1986. However, we cannot find on the basis of the evidence before us sufficient material pointing to that hypothesis. It may well be that the Applicant had a predisposition to this phobia and his period of service aggravated the condition. However, it is not possible, from the evidence, to associate the Applicant’s mild phobia for enclosed spaces with the Applicant’s experience in the Navy and his brief period of operational service.
33. The Respondent noted in its statement of facts and contentions that there is no Statement of Principles for situational phobia and that the process to be applied is as set out by the Federal Court in Thompson v Repatriation Commission [2000] 59 ALD 441 and as laid down by s.120 (1)(3) of the Act. The diagnosis as to the kind of injury or disease suffered by the Applicant must be determined on the balance of probabilities: Repatriation Commission v Cooke (1998)160 ALR 17; Benjamin v Repatriation Commission (2001) 64 ALD 411.
34. To test this contention we have considered the reports from the three psychiatrists and the requirements of the DSM-IV. From the outset, two of the psychiatrists did not address the diagnosis of Specific Phobia of Situational Type and were not present to provide any further opinion. Dr Haik addressed the question of the diagnosis of Specific Phobia of Situational Type at length and disqualified the diagnosis on the basis that it did not satisfy the DSM requirements, in particular Factors A and E. Allowing for some inconsistencies in the Applicant’s histories the Tribunal accepts the evidence of Dr Haik that since discharge the Applicant has led an essentially normal life. This was also our opinion based on the history given to us at the hearing.
35. The problem for the Applicant in the present proceedings is that there is considerable difference in the evaluation of post naval service quality of life as viewed by the three psychiatrists. Dr Haik indicated that two earlier psychiatric reports stated the Applicant “no longer shows his dogs and doesn’t go out very often” (Dinnen p.3) and “he has lost interest in leisure activities including showing his dogs, reading and listening to music” (Altman p.4). The Applicant told Dr Haik he enjoys his reading, particularly books to do with ships and the sea, “But I read anything”, and he continues to do so. Only two months after he was interviewed by Dr Dinnen, the Applicant told Dr Haik that he is very much involved in showing his eight pedigree beagles every fortnight although he breeds them less now because they need to be found proper owners (para 2.6). The Applicant told Dr Haik he was president of several dog clubs. Again there is a conflict in evidence concerning his work and interpersonal relationships. Dr Altman reported the Applicant is irritable at work and suffers fools badly (p.3). He told Dr Haik “I’m very happy with the work---- and if (the boss) is happy to employ me until I am 70 I’ll be there. I have no wish to retire. I have a lovely wife. She looks after me” (para 2.1).
36. We have considerable difficulty with the history and account of the events experienced by the Applicant as reported by Dr Altman, as neither the Applicant in his own evidence nor the other psychiatrists substantiate Dr Altman’s account; his diagnosis of PTSD with major depression is not shared by the other psychiatrists.
37. We conclude, on the balance of probabilities, that the Applicant does not, nor has he ever had, any symptoms consistent with a diagnosis of post traumatic stress disorder (PTSD). We also conclude, on the balance of probabilities, which the claimed condition of specific phobia of a situational type has not been made out; it was not shown that the condition has affected the Applicant to a pathological degree. It is therefore unnecessary to pursue any hypothesis connecting the Applicant’s claims with war service.
Decision
38. The decision under review is affirmed.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of SM I Shearer and Dr M Thorpe.
Signed: Associate
Date/s of Hearing 17 January 2006
Date of Decision 10 May 2006
Solicitor for the Applicant Brian Winship
Advocate for the Respondent Adrian Crowe
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