Patterson and Repatriation Commission

[2003] AATA 1338

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1338

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2001/1156

VETERANS' APPEALS DIVISION		)
Re		DONALD STUART PATTERSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr B J McCabe, Senior Member

Date23 December 2003

PlaceBrisbane

Decision The Tribunal varies the decision under review in that the Tribunal determines that the applicant is suffering from a chronic adjustment disorder. The decision under review is otherwise affirmed. 

(Sgd)             

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – disability pension – post traumatic stress disorder – diagnosis – whether applicant suffering from PTSD – applicant experienced a severe stressor – applicant suffering from chronic adjustment disorder and not PTSD

Veterans’ Entitlements Act 1986

Repatriation Commission v Cooke (1998) 160 ALR 17

REASONS FOR DECISION

23 December 2003 Mr B J McCabe, Senior Member

Introduction

1.      Donald Patterson is the applicant in these proceedings. He claims to suffer from post traumatic stress disorder (PTSD) as a result of events that he experienced while on operational service with the air force in Vietnam, and afterwards. He also claims to suffer from alcohol dependency or abuse. The Repatriation Commission says the applicant does not suffer from PTSD. Its delegate concluded the applicant suffered from an adjustment disorder that was unconnected with his service. The Veterans’ Review Board accepted Mr Patterson does have PTSD, but held there was no connection between that condition and the applicant’s operational service.

2.      The Tribunal must determine whether the applicant’s hypothesis of a connection between his condition and his service is reasonable, taking into account the relevant Statement of Principles. But that means the Tribunal must form a view about the applicant’s condition. Without a diagnosis, it is impossible to work out which Statement of Principles should be used for the purposes of the assessment required under the Veterans’ Entitlement Act 1986.. It follows I must determine a diagnosis after hearing the medical evidence in particular. That diagnosis must be made on the balance of probabilities: see Repatriation Commission v Cooke (1998) 160 ALR 17.

3.      The respondent continues to argue the applicant does not suffer from PTSD. After hearing the applicant describe his experiences in Vietnam, and after hearing the medical experts and considering the Statement of Principles relating to PTSD, I agree. I will explain my reasons in more detail below.

The Material before the Tribunal

4. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. It was also provided with the following statements and medical reports:

§Statement of the applicant dated 8 May 2002 (Exhibit 2)

§Letter from the applicant to his solicitor dated 15 April 2002 (Exhibit 3)

§Report of Dr Carter dated 13 January 2003 (Exhibit 4)

§Transcript of the VRB hearing on 14 September 2001 (Exhibit 5)

§Report of Dr Kingswell dated 23 August 2002 (Exhibit 6)

§Report of Dr Kingswell dated 21 February 2003 (Exhibit 7)

5.      Mr Patterson gave oral testimony at the hearing. The Tribunal also heard from Dr Carter and Dr Kingswell.

6.      Mr Harding represented the applicant. Mr Smith represented the respondent.

The Facts

7.      The applicant was born on 22 November 1940 and enlisted in the Royal Australian Air Force on 23 January 1956.  He was discharged on 23 January 1976.  He had operational service in Vietnam from 25 May 1966 to 8 January 1967 and defence service from 7 December 1972 to 23 January 1976.

8.      The evidence in the hearing focused on Mr Patterson’s experiences in Vietnam. He described a number of events that he argued amounted to “severe stressors” within the meaning of the Statement of Principles. He referred in particular to a trip down the Mekong River in a barge which may have been fired upon, to a flight over enemy positions in a light aircraft which might also have been fired upon, mortar attacks and the aftermath of a helicopter crash. I will not refer to the first three incidents in detail: after hearing his evidence and listening to the cross-examination, I am not satisfied the applicant regarded them as severe stressors.

9.      The incident with the helicopter is different. The machine crashed within a few hundred metres of the applicant’s quarters at the air base where he was stationed. It was an American helicopter that was in the process of being martialled. The helicopter’s rotors clashed with those of another aircraft. The applicant did not see the accident, although it seems he heard it occur.  Mr Patterson was ordered to participate in a clean-up detail.  For obvious reasons, it is important to ensure that any debris lying about on an airfield is quickly collected. The applicant says he and another man came across a human hand, or part of a human hand. It belonged to one of the American personnel who was injured in the accident.

10.     Statement of Principles No 3 of 1999 deals with PTSD. Clause 5 requires that the applicant experience a “severe stressor” in the course of his service (or be unable to obtain appropriate clinical management of his PTSD) if he is to connect his condition with that service. Clause 8 defines the expression “experiencing a severe stressor”. It says the expression includes “participation in or observation of casualty clearance…”.. I am satisfied in the circumstances that finding parts of a human hand in the aftermath of an accident would amount to a severe stressor that would connect the service with PTSD. But does the applicant have PTSD?

11.     Dr Janis Carter gave evidence on behalf of the applicant. She conducted eleven interviews with the applicant. She says Mr Patterson suffers from PTSD. She acknowledged during the course of her evidence that the applicant was a difficult historian who had trouble telling the story of his experiences in Vietnam and more recently. She noted he suffered from nightmares (according to his wife) and relived some of the stressful events he had witnessed in Vietnam. She said he experienced intense fear and even horror (although I have already observed that I am only convinced one of those events – the discovery of the body part – qualifies as a severe stressor for the purposes of the Statement of Principles). She said he experiences flashbacks and exhibits intense psychological distress when he is exposed to cues that reminded him of the events, like television reports.

12.     Dr Carter’s report of 30 July 2001 also detailed a number of examples of avoidant behaviour. She said in particular that the applicant’s difficulty in telling his story suggested he was avoiding the feelings and memories aroused by that story. She also said he exhibited symptoms of increased arousal, including sleeplessness, irritability, hyper-vigilance and an exaggerated startle response to loud noises. She also said he abused alcohol. (I note the applicant said in his evidence that he began to drink more heavily when he was in Vietnam).

13.     Dr Kingswell was called by the respondent. He confirmed an earlier diagnosis offered by a Dr Pryor.  Dr Kingswell said the applicant does not suffer from PTSD – he suffers instead from a chronic adjustment disorder as a result of his experiences unconnected with his air force service, including difficulties with his employment and marriage. Dr Kingswell said there was nothing in the history related to him that constituted a severe stressor that gave rise to a feeling of horror or helplessness (although I am satisfied that finding a hand would qualify). In any event, he said, the symptoms described in the history did not admit of a diagnosis of PTSD. He disputed Dr Carter’s analysis of the nightmares, for example: the applicant’s evidence and the history provided to Dr Carter did not suggest the applicant was woken by his dreams, and he could not remember their content. That did not amount to nightmares, Dr Kingswell explained. He said you cannot be distressed by events you cannot remember. He also said there was no evidence of intrusive recollections, which would ordinarily be expected.

14.     Dr Kingswell was deeply critical of Dr Carter’s diagnosis. He dismissed it as “nonsense” on the history set out in her report. He also criticised the history she took suggesting it was muddled. He added that a diagnosis of “post trauma syndrome” discussed by Dr Carter was problematic. He said there was no such diagnosis. In Dr Kingswell’s view, what symptoms there were could be better explained by a diagnosis of chronic adjustment disorder, which is not attributable to the events occurring during his service.

15.     I am inclined to accept Dr Kingswell’s criticisms of Dr Carter’s evidence. Her report struck me as superficial – especially in light of the fact she had at least eleven sessions with the applicant. I am satisfied after hearing Dr Kingswell that the applicant’s symptoms are better explained by a diagnosis of chronic adjustment disorder. I reach that conclusion notwithstanding my satisfaction that the applicant experienced a severe stressor in Vietnam. But experiencing a severe stressor does not necessarily mean the applicant suffers from a psychiatric disorder. There was no evidence to suggest the applicant’s alcohol intake and any problems arising out of that were connected with his service either.

Conclusion

16.     The decision under reviewed is varied to substitute a diagnosis of chronic adjustment disorder. It is otherwise affirmed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Senior Member

Signed:         Sarah Oliver
  Associate

Date of Hearing  30 July 2003
Date of Decision  23 December 2003
Counsel for the Applicant         Mr Harding
Solicitor for the Applicant          Gilshenan & Luton
For the Respondent                  Mr Smith, Departmental Advocate