Reardon and Repatriation Commission

[2005] AATA 1190

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1190

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1224

VETERANS' APPEALS DIVISION		)
Re		JAMES REARDON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Ms R Hunt
Member Dr J Campbell

Date5 December 2005

PlaceSydney

Decision The tribunal affirms the decision under review.

..............................................

Ms R Hunt

Presiding Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – Eligible war service – Generalised Anxiety Disorder – Claim that condition related to service – Conflicting diagnoses – No disorder found - Decision under review affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986, ss 120(1), (3) and 120B

CASES

Repatriation Commission v Deledio (1998) 49 ALD 193

Benjamin v Repatriation Commission (2001) 70 ALD 622

RepatriationCommission v Hill (2002) 69 ALD 581
Stoddart v Repatriation Commission (2003) 74 ALD 366
White v Repatriation Commission [2004] FCA 633
Repatriation Commission v Law (1980) 31 ALR 140
Lee and Repatriation Commission (1986) 11 ALD 56
Repatriation Commission v Smith (1987) 12 ALD 798
Woodward v Repatriation Commission (2003) 75 ALD 420
Re Woodward and Repatriation Commission (2002) 72 ALD 288
Re Slattery andRepatriation Commission (1998) 52 ALD 90

Statement of Principles concerning GAD (Instrument No 2 of 2000)

Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), 4^th Ed

REASONS FOR DECISION

5 December 2005 Senior Member Ms R Hunt
Member Dr J Campbell      

SUMMARY

1.        Mr James Reardon, the applicant, is seeking review of a decision of the Veterans’ Review Board (VRB) rejecting his claim for a pension in respect to the condition of Generalised Anxiety Disorder. After considering the material before us, we are satisfied on the balance of probabilities that Mr Reardon does not suffer from this disorder. This means that Mr Reardon’s claim has been unsuccessful and the decision under review is affirmed.

BACKGROUND

2.        Mr Reardon was born in Liverpool, in England. He was living in Liverpool at the time of the German blitz of Liverpool in May 1941. Mr Reardon recalls that he and his family had to take shelter in a refuge for 10 to 12 days. He migrated to Young in NSW, Australia, in 1948, at the age of 17, under the sponsorship of the Big Brother movement. He met his wife, Dorothy Reardon, in Young before he left to serve in the Korean war and married her in May 1952, at the age of 21. They have been married for over 50 years.   

3.        Mr Reardon joined the Royal Australian Navy (RAN) at the age of 21. He served in the RAN from 20 August 1952 until 19 August 1958. His eligible war-service, which is also operational service, covers three periods as follows:

22 October 1953  to 2 June 1954	HMAS Sydney	Korea
27 October 1954 to 3 December 1954	HMAS Vengeance	Korea
21 September 1956 to 12 October 1956	HMAS Melbourne	Far East Strategic Reserve

ISSUE

4.        The main issue before the tribunal is whether Mr Reardon suffers from a war-caused anxiety disorder. We have first considered below whether the diagnosis of generalised anxiety disorder is correct.

The Diagnosis

5.        The first task for the tribunal is to determine whether Mr Reardon suffers generalised anxiety disorder (GAD) as he claims. This must be determined on the balance of probabilities: see Repatriation Commission v Cooke (1998) 52 ALD 1 and Benjamin v Repatriation Commission (2001) 64 ALD 411, per Moore, Emmett & Allsop JJ. As their Honours noted, at paragraph 41, SoPs are not relevant to the question of diagnosis.

6.        Several doctors, who have treated or examined Mr Reardon, have provided reports and clinical records which are before the tribunal. Dr Horden and Dr White both examined and assessed Mr Reardon and provided reports as well as giving oral evidence to the tribunal. They disagreed as to whether Mr Reardon had any anxiety disorder attributable to his operational service.

7.        Mr Reardon and Mrs Reardon both gave oral evidence at a tribunal hearing. Mr Reardon told us that he had never been on any medication for his anxiety symptoms or disorder although he did drink in the navy and continued to have 3 or 4 scotches a night. He had been to see psychiatrists several times. Mr Reardon told us his moods and behaviour had not changed in almost 50 years. He said he started to worry in the navy and that he did not like being in confined spaces. He said he avoids people and that he has always been a bit shy. He gave evidence he had experienced bad dreams for “ages” and suffered from interrupted sleep. He did not dream about the Blitz but felt “strange” when he heard the London Symphony. He said he suffered claustrophobia but this had not happened until he was in the navy.

8.        Mrs Reardon confirmed that Mr Reardon has trouble sleeping. She gave evidence that he goes to sleep quickly but then wakes up and has the radio on all night. She said that sometimes he wakes up screaming and so hot and sweaty that he has to change his pyjamas. Mrs Reardon also said that Mr Reardon had a couple of scotches every night and maybe wine. He drank scotch when he came out of the navy and started to drink wine later when they used to go to the Griffith wine festival. She told us that, when he drank, he became more nasty. She was not a drinker herself and found him harder to take now he was retired and they spent more time together. She observed that Mr Reardon was not a nice drunk and said dreadfully cutting things to her, family and friends. She observed that Mr Reardon had more friends than she because she was unable to go out much due to her arthritis. She said quite a few people visited her at home and she and Mr Reardon both got on well with the neighbours. She further said Mr Reardon attended Korean veterans’ meetings and barbecues. Mrs Reardon told us that when Mr Reardon was discharged from the navy, she did not like the person who returned and she left him for a while. She said he did not re-enlist because she was having a baby and he decided to come ashore.

9.        Mr Reardon also told us he has poor concentration and bursts of anger. He said he was angry with his children when they were growing up. This was confirmed by Mrs Reardon who described her husband as very fidgety and said he still upset his children now that they were adults. One of his daughters had recently told him to “butt out, Dad”. Mrs Reardon also stated that his short term memory was impaired and he wrote everything down on his calendar. Mr Reardon gave evidence that he had not read a book for years because of his poor concentration. Mrs Reardon further told the tribunal that Mr Reardon had no patience, couldn’t bear to wait and would not queue. She gave evidence that he hated public transport and that he could not get on with people, even his family. Mrs Reardon said her husband was easily agitated and was getting worse. She said that he worried about what could happen rather than what does happen and that he was very negative.

Medical evidence

10.      We heard evidence from two specialist psychiatrist, Dr Hordern and Dr White, and also had before us a report from Dr Haik, dated 7 November 2002, as well as reports from Dr Keshava, Dr Koller and Dr Anderson, an occupational physician. Dr Keshava, Dr Koller and Dr Hordern all reported that Mr Reardon suffers from GAD caused by a series of stressors he encountered during his service. On the other hand, Dr White, Dr Haik and Dr Anderson found Mr Reardon did not suffer from the disorder. Dr Anderson stated in his report, dated 15 February 2005, “[t]here does not appear to be any set of circumstances where he could have been reasonably exposed to any precipitating factor causing anxiety.”

11.      Dr Keshava stated in his report, dated 6 December 2001, that Mr Reardon’s anxiety disorder “appears to have stemmed from his service in the navy”. However, he did not venture a date of clinical onset. Dr Koller in his report, dated 6 February 2002, stated that Mr Reardon experienced severe psychosocial stressors within 2 years immediately before the clinical onset of an anxiety disorder but did not state exactly when this was. 

Dr Hordern’s Evidence

12.      Dr Hordern provided two reports, dated 11 January 2005 and 22 October 2002, in which he came to the conclusion that that Mr Reardon suffers from GAD. Dr Hordern wrote that events during Mr Reardon’s operational service caused him to smoke and use alcohol to control his symptoms. He confirmed this view in oral evidence. In his opinion, incidents that occurred during service when Mr Reardon was in the officers’ mess, 4 decks below, had caused his condition. Dr Hordern observed that tobacco and alcohol are common non-medical tranquilisers used to treat stress. He noted his conclusions were no different from those of Drs Keshava and Koller.

13.      Dr Hordern gave oral evidence that, in his view, Mr Reardon was a substantial drinker but not an excessive drinker. Dr Hordern placed some importance on Mrs Reardon’s noticing a change in Mr Reardon’s behaviour when he returned form the Korean War. He thought this was evidence of clinical onset at that time and that, when Mr Reardon stopped work, the symptoms became more obvious. Dr Hordern thought Mr Reardon’s early childhood experiences, such as the Liverpool Blitz, would have made him somewhat vulnerable. However, it was war experiences that caused the disorder. He took a history of 5 stressful events experienced by Mr Reardon during his operational service and considered the finding of general anxiety disorder was self-evident. He told us he made his assessment according to clinical criteria as well as the relevant statement of principles. Dr Hordern thought that Mr Reardon met at least four of the SoP criteria for the disorder and placed some reliance on Mrs Reardon’s having found Mr Reardon had changed and was difficult to live with when he returned from the war. He believed clinical onset occurred in 1954 and that Mr Reardon treated his disorder by drinking scotch. Dr Hordern said he did not take a detailed history of what occurred in 1954 but thought that Mr Reardon started to smoke and drink heavily to overcome his tense and anxious feeling. He thought that Mr Reardon did suffer significant impairment and that his condition adversely affected his marriage. It was difficult to assess Mr Reardon 40 years after his war service but he had conducted his examination for 2 hours and 55 minutes. He disagreed with Dr White.

14.      Dr Hordern’s diagnosis, set out at page 8 of his report dated 22 October 2002, was chronic, moderately severe, generalised anxiety disorder produced in a hitherto healthy, young, happily married man, by stressors during the war. His diagnosis, coded according to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV),  was 300.02. In his 11 January 2005 report, Dr Hordern said his diagnosis did not differ from the earlier one. He again noted that Mr Reardon partially controlled his symptoms by self-medication with alcohol and they had become more severe since he retired from the Department of Agriculture in 1991.

Dr White’s evidence

15.      Dr White also conducted a comprehensive examination and report. He told us Mr Reardon exhibited no signs of mental illness in 2005. He provided two reports dated 7 March 2005. Dr White reviewed numerous medical reports and discussed them in his own report of 7 March 2005. Dr White noted Dr Karl Koller considered Mr Reardon a heavy drinker, unlike his physician and gastroenterologist. He commented that Dr Koller should have advised that Mr Reardon become abstinent from alcohol, have treatment if necessary, and then be reviewed. Dr White also observed as to Dr Koller’s finding that situations to which Mr Reardon was exposed in service were anxiety provoking, that the issue was whether Mr Reardon was made mentally ill by these events.

16.      Dr White further noted Dr Haik, on 7 November 2002, found no evidence of a psychiatric disorder. In relation to Dr Hordern’s diagnosis of the disorder, Dr White noted that Dr Hordern in his report of 11 January 2005 offered the diagnosis but did not offer an opinion on when it commenced. Further, Dr Hordern did not provide any documentation for the occurrence of the disorder within 2 years of the severe psychological stressors to which he referred.

17.      In Dr White’s opinion, Mr Reardon does not suffer from any form of psychiatric disorder or stress related illness which can be attributed to his service. Dr White did not find Mr Reardon a vulnerable person despite living through the Blitz, being a major psychological event. He thought that, by and large, his career pointed to a fairly normal adulthood. He gave evidence that life events can precipitate or unmask symptoms but a simple cause and effect relationship with an event does not exist. A person must have a genetic predisposition. As well, retrospective evidence of a disability is hard to obtain. Dr White saw the Liverpool Blitz as an event capable of being a major psychosocial stressor even though Mr Reardon was a child with his family at the time. Nevertheless, he did not think that Mr Reardon’s history indicated any vulnerability.  Dr White noted Mr Reardon had presented as normal during his interview. Behaviour during an interview he thought was relevant to an assessment. In relation to Mr Reardon’s sleeping patterns, Dr White acknowledged poor sleeping patterns can be a symptom of GAD. However, the most common cause was the wearing off of the effect of sedatives or alcohol.

18.      Dr White was concerned that Mr Reardon had not undergone treatment and not stopped drinking before the examination and assessment. He said a clinical decision about Mr Reardon should not be made until he was alcohol free. An accurate diagnosis and assessment of incurable mental illness could not be made while the patient was still drinking. He criticised other doctors who had made a diagnosis of anxiety disorder without examining Mr Reardon after he had ceased to drink. Nevertheless, Dr White also provided his assessment despite the alcohol problem.

19.      Dr White said, as a clinician, he tried to avoid being too judgmental but did not think that any of the stressors documented had anything to do with Mr Reardon’s mental state at present. Under questioning, he said he did consider Mr Reardon’s state in terms of the SoP but did not frame his questions of Mr Reardon in the same terminology. He observed that asking someone if they were “hypervigilant” tended to bring a tailored answer such as “I am hypervigilant”. He asked Mr Reardon how he was at the interview and Mr Reardon had said “okay”. If he had significant psychiatric symptoms, Dr White told the tribunal he might have read more into his drinking. Dr White reasoned that, if a couple of scotches fixed Mr Reardon after the submarine scare, then he was not mentally ill and he was not scared out of his wits. He observed that why we start drinking may not be the reason we continue to drink. Dr White observed that DSM-IV criteria did not talk about stressors and dealt with clinical criteria. Before he could accurately assess Mr Reardon’s symptoms such as poor sleep, concentration and aggression, he would like to have alcohol excluded.  He also noted that Mr Reardon had a successful career with the Department of Agriculture after release from the RAN. Dr White found no evidence of impairment or disability. In his opinion, it was only when a person was disabled by symptoms of mental illness that he or she had the disorder.

20.      Dr White summarised Mr Reardon’s current mental state on pg 20 of his report dated 7 March 2005. In making his assessment, his starting point was reference to DSM-IV, highlighting features of mental illness. He noted that Mr Reardon described rather than exhibited symptoms. His behaviour, including appearance, demeanour, organisation of speech and affect during interview was not consistent with psychiatric disorder. He recorded Mr Reardon’s description, while he was not working, of having pleasurable non-vocational activities which were inconsistent with an incapacitating psychiatric disorder.  Dr White acknowledged that Mr Reardon did complain of “some mild psychiatric symptomatology” but found no objective evidence of disability associated with these symptoms. In conclusion, Dr White took note of the opinions conflicting with his own but thought, for any clinician to reach an affirmative diagnosis of a mental illness in the case, the clinician must have been influenced by the psychological symptoms without due consideration to he necessary and essential criteria for mental illness which includes characteristic behaviours during the interview, cognitive difficulties and impaired vocational and psychological functioning.

Findings

Does Mr Reardon have GAD?

21.      We have considered the evidence of Mr Reardon and his wife as well as the medical evidence before us. The material before us does not point to several elements of the disorder according to DSM-IV. While Mr Reardon displays some of the symptoms associated with an anxiety disorder, he functioned well throughout his time in the navy and subsequently. He worked as a butcher for a time before he obtained a public service position. There is nothing before us to suggest that Mr Reardon had trouble coping at work or that he has performed unsatisfactorily. Mrs Reardon could recall only one incident when Mr Reardon had an argument at work and mentioned an incident in the cool room. This suggests to us that Mr Reardon was at no time significantly impaired by any mental illness or disorder. We agree with Dr White’s findings and observations in this regard. We have also noted an emphasis on SoP factors in the reports and oral evidence presented to us. However, these criteria are not those which determine diagnosis. We have followed the procedure recommended in Benjamin (supra) in following the clinical diagnosis before proceeding to consideration of stressors and factors which do not determine diagnosis.

22.      All the opinions before us confirm that Mr Reardon has some symptoms of anxiety. It is no doubt true that Mr Reardon is an irritable and impatient man but he has been a good provider and a good father to his children, as Mrs Reardon acknowledged. He may be cross with his grandchildren and irritate his daughters but his daughters still visit him and Mrs Reardon. Mr Reardon attends Korean veterans’ functions and keeps up with his family here and has visited family in the UK. Despite some social reticence, these instances show that he is not suffering significant social functioning limitations. We also accept that Mr Reardon does have sleeping problems. We further accept that he is a worrier and exhibits some compulsive behaviour mentioned by his wife. However, there is no material before us suggesting social impairment or substantial distress. He has some symptoms of an anxiety disorder without having reached a situation where he has the actual disorder. Mr Reardon held down a responsible position until his retirement at normal retirement age. His wife told us not only was he was a good father but he also coached children at sport. In the face of conflicting expert medical opinion, as well as the evidence of Mr Reardon and his wife, we are not convinced that Mr Reardon suffered any psychiatric disorder.

23.      According to the DSM-IV, Generalised Anxiety Disorder is characterised by at least 6 months of persistent and excessive anxiety and worry. The worry or “apprehensive expectation” criterion, Criterion A, involves the occurrence on more days than not about a number of events or activities, such as work. In terms of work, the evidence is that Mr Reardon performed well until retirement age. Mr Reardon did tell the tribunal that he worried constantly about his vulnerable position while serving on board ship and drank to assuage his fears. However, he did not report to the tribunal any history of having worried excessively about his former employment position after discharge. Mrs Reardon has told us that Mr Reardon is a worrier but the illustrations of this she provided are not dramatic and not specific. Neither Mr Reardon nor his wife told the tribunal of any particular concern that caused Mr Reardon to worry excessively. We find no strong evidence that Mr Reardon worries excessively although he has a tendency to worry, perhaps unnecessarily about some matters.

24.      Criterion B for GAD according to DSM-IV concerns the person finding it difficult to control the worry. The suggestion put to the tribunal is that Mr Reardon drank to control the worry when he was on board ship. Further, he continues to drink. We accept that his consumption of alcohol does continue and that his personality may deteriorate when this occurs. However, we also note that Dr White drew attention to the difficulty of assessing a person’s mental condition when alcohol has not been suspended before the assessment. It may be that this factor is present in Mr Reardon’s case although his drinking has not been such as to prevent him performing at work in the past and he has remained a family man.

25.      Criterion C concerns an association with three or more of six symptoms present for more days than not. The symptoms identified in DSM-IV are:
           (1) restlessness or feeling keyed up or on edge
           (2) being easily fatigued

(3) difficulty concentrating or mind going  blank

(4) irritability

(5) muscle tension

(6) sleep disturbance

26.      We accept that Mr Reardon exhibits some of the symptoms for criterion C. We have heard evidence as to Mr Reardon’s irritability and disturbed sleeping pattern. We accept that he exhibits irritability and suffers sleep disturbances. Mr Reardon claimed that he had always been a bit shy and avoided people but, at the same time, we heard evidence that he held down a job after the navy and coached children at sport. He has a social life and friends. We have not heard or seen any strong evidence of any of the other symptoms listed under criterion C.

27.      Criterion D concerns the focus of anxiety and worry. We have not heard or seen any strong evidence as to the focus of Mr Reardon’s anxiety and worry. We note that he wakes up in a sweat and has bad dreams. From the statements made by Mr and Mrs Reardon we have formed the impression that he worries in general and is somewhat obsessive but, without more detail of the extent and nature of the matters that concern Mr Reardon, we are unable to find that Mr Reardon has any particular focus. While his worrying is not a feature of any axis disorder, in our view, he has not met criteria A and B as to worry and its control, so the focus takes the assessment no further.

28.      Criterion E describes the symptom of worry causing clinically significant distress or impairment in social, occupational, or other important areas of functioning. Dr White, in particular, gave evidence that he noted no impairment of this kind when examining Mr Reardon. He reported that Mr Reardon told him he was “okay” and behaved in a normal manner. In addition, Mr Reardon’s coaching children in sport and successful career after the navy suggests he had no significant distress or impairment in social functioning.

29.      Lastly, criterion F refers to the direct physiological effects of a substance such as a drug of abuse or medication. Dr White observed that a reliable assessment was not possible in Mr Reardon’s case because he had not stopped drinking when he underwent assessment. Dr White was concerned that none of the reports he considered indicated that they were made when Mr Reardon was free of the effects of prolonged alcohol consumption. It is therefore not clear that Mr Reardon’s disturbance might continue if he were to cease drinking for a period. In addition, Mr Reardon told the tribunal that his drinking did not affect his work but helped him to sleep.

30.      On balance, after analysing the evidence in terms of DSM-IV, we have decided that Mr Reardon does not meet sufficient criteria to satisfy a clinical diagnosis of generalized anxiety disorder. This accords with the diagnosis of Dr White whose report and diagnosis was based on a clinical approach rather than consideration of stressors. It follows that the decision under review must be affirmed.

DECISION

31.      The tribunal affirms the decision under review.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt

Signed:         .....................................................................................
Zoe McDonald
Associate

Dates of Hearing: 20 June 2005 and 17 August 2005   
Date of Decision: 5 December 2005         
Solicitor for the Applicant: Fairbairn Lawyers                  
Solicitor for the Respondent: Department of Veterans’ Affairs