Reynolds and Repatriation Commission
[2003] AATA 1258
•12 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1258
ADMINISTRATIVE APPEALS TRIBUNAL N2002/0001
VETERANS APPEALS DIVISION
Re: Kevin Walter REYNOLDS
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: P.J. Lindsay, Senior Member
Date: 12 December 2003
Place: Sydney
Decision:The decisions under review should be set aside. In substitution the tribunal decides that the applicant’s alcohol abuse and secondary cardiomyopathy with congestive cardiac failure are war-caused diseases. The matter is remitted to the Commission for assessment.
(sgd) P. J. Lindsay, Senior Member
© Commonwealth of Australia (2003)
ORDER TO AMEND WRITTEN DECISION
Tribunal P.J. Lindsay, Senior Member Date15 January 2004
PlaceSydney
WHEREAS
1. The tribunal published its decision on 12 December 2003.
2. It has come to the tribunal’s attention that there was an error in the decision in that there is no reference to the date of effect of the decision.
3. The tribunal wishes to amend the written decision so as to rectify the error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act 1975.
THE TRIBUNAL THEREFORE ORDERS:
That the decision of the tribunal as recorded should read as follows:
The decisions under review should be set aside. In substitution the tribunal decides that the applicant’s alcohol abuse and secondary cardiomyopathy with congestive cardiac failure are war-caused diseases with effect from 18 February 2001 and 21 March 2000 respectively. The matter is remitted to the Commission for reassessment of the rate of pension taking into account incapacity from these diseases.
(sgd) P.J. Lindsay
Senior Member
CATCHWORDS
Veterans Affairs – entitlement – applicant suffering from secondary cardiomyopathy with congestive cardiac failure - symptoms of a psychiatric condition – diagnosis of psychiatric symptoms - applicant experienced severe stressor - diagnosed psychiatric conditions of PTSD and alcohol abuse are war-caused diseases - decisions set aside.
Veterans’ Entitlements Act 1986, ss.120, 120A
Repatriation Medical Authority Statements of Principles:
- Instrument No.76 of 1998 concerning Alcohol Abuse or Dependence
- Instrument No 19 of 1998 concerning Cardiomyopathy, as amended by Instrument No 22 of 2002
- Instrument No 3 of 1999 concerning Post Traumatic Stress Disorder, as amended by Instrument No 54 of 1999
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Hill (2002) 69 ALD 581
Benjamin v Repatriation Commission (2001) 34 AAR 270
Repatriation Commission v Budworth (2001) 66 ALD 285
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Smith (1987) 74 ALR 537
McKenna v Repatriation Commission (1999) 29 AAR 70.
Bull v Repatriation Commission (2001) 66 ALD 271
Stoddart v Repatriation Commission (2003) 197 ALR 283
Woodward v Repatriation Commission (2003) 200 ALR 332
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Lees v Repatriation Commission (2002) 36 AAR 484
Bushell v Repatriation Commission (1992) 175 CLR 408REASONS FOR DECISION
P.J. Lindsay, Senior Member
1. Kevin Walter Reynolds served in the Royal Australian Navy from 16 June 1955 to 15 November 1961, mainly as a clearance diver. He has applied to the tribunal under the Veterans Entitlement Act 1986 (the Act) for a review of two decisions made by the respondent, the Repatriation Commission (the Commission). On 3 April 2001 the Commission refused a claim for incapacity pension and medical treatment in respect of secondary cardiomyopathy with congestive cardiac failure. The Commission’s second decision was its refusal on 30 June 2001 of Mr Reynolds’ claim in respect of alcohol dependence or alcohol abuse. On 27 September 2001 the Veterans’ Review Board (the Board) affirmed both of the Commission’s decisions. Mr Reynolds then requested the tribunal to review the Commission’s decisions.
2. Mr Reynolds, who is 66, enlisted in the Navy on 16 June 1955 and was discharged on the expiry of his engagement on 15 November 1961. His Navy service included the following periods of operational service:
· In Malaya from 21 September 1956 to 12 October 1956
· In Far East Strategic Reserve from 23 June 1960 to 29 June 1960
· In Far East Strategic Reserve from 4 July 1960 to 8 July 1960
· In Far East Strategic Reserve from 15 July 1960 to 22 July 1960
· In Far East Strategic Reserve from 29 July 1960 to 16 August 1960
· In Far East Strategic Reserve from 10 September 1960 to 10 October 1960
· In Far East Strategic Reserve from 14 October 1960 to 5 November 1960
· In Far East Strategic Reserve from 15 November 1960 to 30 November 1960
Accordingly, s.120(1) of the Act applies and the disease of secondary cardiomyopathy with congestive cardiac failure will be determined to be war-caused unless the tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. The tribunal will be so satisfied if it is of the view that the material before it does not raise a reasonable hypothesis connecting the disease with the circumstances of the applicant’s service: s.120(3). As his claim for pension was lodged after 1 June 1994, s.120A of the Act applies and the tribunal is to assess the reasonableness of the hypothesis in accordance with any SoP issued by the Repatriation Medical Authority (RMA).
issues
3. Mr C Colborne of counsel, who appeared for Mr Reynolds, advanced the hypothesis that the applicant’s dives in Singapore Harbour while seconded to the Royal Navy’s Far East Bomb and Mine Disposal Team, amounted to experiencing severe stressors. As a result, Mr Reynolds developed alcohol abuse, which itself was a manifestation of the applicant’s self-medicating his PTSD, which also was caused by experiencing those severe stressors. The applicant’s secondary cardiomyopathy with congestive cardiac failure arose out of or was attributable to his alcohol abuse.
4. The applicable SoPs are:
- SoP 19 of 1998 concerning Cardiomyopathy, as amended by SoP 22 of 2002;
- SoP 3 of 1999 concerning Post Traumatic Stress Disorder (PTSD) as amended by SoP 54 of 1999;
- SoP 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse.
5. The respondent disputes a diagnosis of PTSD and the diagnosis of alcohol dependence or abuse. Mr N Bunn from the Department of Veterans’ Affairs (the Department), who represented the Commission, contended that Mr Reynolds did not ‘experience a severe stressor’ during his periods of operational service as required by SoP 3 of 1999 and SoP 76 of 1998. Mr Bunn contended that the appropriate diagnosis for any psychiatric disorder suffered by Mr Reynolds is Avoidant Personality Disorder, the relevant SoP being SoP 143 of 1995 concerning Personality Disorder, as amended by SoP 13 of 1997. Mr Bunn informed the tribunal that the Commission would accept that, should it be determined that the applicant suffers war-caused alcohol dependence or alcohol abuse, then the alcohol factor in SoP 19 of 1998 would be satisfied. That factor (5(b)) states a reasonable hypothesis will be raised connecting cardiomyopathy with service where:
for men, drinking at least 250 kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of secondary cardiomyopathy;
background
6. On 21 June 2000 Mr Reynolds lodged a claim for pension with the Department in respect of a condition that his G.P, Dr Y Bailey, diagnosed as ‘alcoholic cardiomyopathy’ (T5). In support of the claim, Mr Reynolds referred to an incident that occurred in 1960 while he was diving in Hong Kong harbour as part of a Royal Navy exercise. He said that during this exercise he suffered oxygen poisoning. He passed out and was rescued from the bottom of the harbour. His claim form stated that this incident was the “source of my drinking to [sic] excess”. In addition he completed an alcohol questionnaire. He stated that he began to drink alcohol on a regular basis in 1960. In giving a reason for beginning to drink alcohol, Mr Reynolds again referred to the diving incident in Hong Kong harbour (T5-17). He stated that he started to drink rum, beer and wine. On average he would drink 15 to 20 schooners a day. At the time of completing the alcohol questionnaire in May 2000, he was consuming 6 to 8 beers a day.
7. Dr D Singham, cardiologist, provided the Department with a report dated 12 October 2000 (T10). Dr Singham stated that the applicant has mild cardiomyopathy and mild coronary artery disease, which were based on cardiac catheterisation studies performed on 5 March 1997. A heart scan performed in September 1999 confirmed that both ventricles were slightly enlarged. In Dr Singham’s opinion “ … the mild cardiomyopathy that he has is most likely on the basis of alcohol abuse.”
8. The Commission’s initial decision of 6 July 2000 rejected Mr Reynolds’ claim on the ground that he was not a ‘veteran’ or a ‘member of the Forces’ as defined under the Act. Yet later, on 12 February 2001, he was advised that the Commission had established that he had performed various periods of operational service and that he was a ‘veteran’ under the Act. On further investigation of the claim, however, it was found that Mr Reynolds had served a number of periods of operational service. His claim was re-examined but it failed because the Department of Defence records (T17) showed that the diving exercise in Hong Kong, on which his claim relied, happened on 6 November 1960 which was not during a period of operational service. Accordingly, that diving could not be taken into account in determining whether his drinking was service related. The Commission therefore decided on 3 April 2001 that the evidence did not raise a reasonable hypothesis connecting the applicant’s secondary cardiomyopathy with congestive cardiac failure and operational service (T18).
9. Mr Reynolds lodged another claim on 18 May 2001. He referred to his disability as alcohol dependence or alcohol abuse. Dr Bailey‘s diagnosis was alcoholic cardiomyopathy. The claim noted that he “Began drinking heavier during service with FESR. Exposure to unstable ammunition, setting explosives in darkness underwater.” (T19A).In explaining how his service caused, contributed to or aggravated the disability, Mr Reynolds stated (T19A):
Stress & trauma of diving on live, unstable ammunition in Singapore Harbour area during time attached to Royal Navy diving team in Singapore. Ammunition left from WW2.
On 30 June 2001 the Commission refused the claim for alcohol dependence because it considered that his alcohol dependence was not due to a severe stressor as required by the relevant Statement of Principles (SoP) 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse (T21). The Board affirmed the Commission’s decisions and Mr Reynolds applied to the tribunal for review of the Commission’s decisions.
evidence
10.
Mr Reynolds was 15 when he left school. He remained in Maitland where he worked as an apprentice butcher for 18 - 24 months. Following enlistment in the Navy, he was posted to HMAS Melbourne after periods of preliminary training. Psychological testing revealed a suitability for further training as a cook. Mr Reynolds
decided, however, to try the recently established diving specialisation. His evidence was that he thought diving would be more of a challenge than being a cook and it would provide greater status. So he put himself forward for training and ultimate selection as a clearance diver. His evidence was that there was a large fallout and failure rate among those who wished to qualify as clearance divers. He was subsequently posted as a clearance diver to HMAS Vampire.
11. While HMAS Vampire was in Singapore, Mr Reynolds was attached as clearance diver to the Royal Navy’s Far East Bomb and Mine Disposal Team which was carrying out a survey of an underwater ammunition dump near Johore Bahru close to the Singapore – Malaysia causeway. According to his service documents (exhibit A4) he was attached to the disposal team from 24 to 28 October 1960. In addition to the survey work he gained experience in training with Royal Navy divers and diving to a depth of 140 feet.
12. Mr Reynolds described Singapore Harbour as being like a sewer. The water was filthy, he said it seemed to be full of raw sewage and there were many sea snakes. After dives he had to clean his ears with alcohol to limit the risk of infection. Visibility was so poor that he had to feel and handle items, such as mortar shells and other ammunition weighing up to 100 pounds. The current was very strong. The conditions were not what he was used to, hitherto having dived only in Sydney Harbour.
13. The applicant’s evidence was that diving with the Royal Navy’s team involved two dives a day. He said they dived alone and the nearest help was in a dinghy near the search zone. Because he could not see what he had to move, he had to feel his way around the ammunition dump. He had no idea what he was touching and whether it was booby trapped and could explode. He would put shells and bombs in a sling for retrieval by a surface crew. He said he was terrified during these dives and did not want to dive again. Divers were guided by jackstays, fixed lines marking the area to be searched. He became detached from a jackstay on one occasion and, before the dinghy rescued him, he was terrified that he would be swept away and drowned.
14. In cross-examination he agreed that he was given very rigorous training as a clearance diver. Instruction covered bomb disposal, submarine retrieval and pyrotechnics. He had been trained in bomb clearing, but pointed out that the training took place on land. He denied that the training, at Casula in New South Wales, required him to wear darkened goggles.
15. Mr Reynolds told the tribunal that he did not drink alcohol at all prior to his period of service with the Royal Navy’s team. But the experience “got to me” and he then began drinking heavily.
16. A report by Captain H A Josephs of the Royal Australian Navy on behalf of Writeway Research Services dated 16 December 2002 was tendered by the respondent (exhibit R3). By reference to Vampire’s Report of Proceedings, Captain Josephs concluded that Vampire was in the Singapore area from 19 to 31 October 1960 and this would have provided opportunity for her divers to participate in local diving operations if required. In his opinion “A clearance diver’s tasks could frequently have involved unenviable, unpleasant and somewhat hazardous aspects, particularly in Asian ports and waterways, and for the most part these would have been considered ‘part of the job’. There could be wide variation in the attitude and reaction of individual divers to specific working conditions, circumstances and experiences, so that an experience which could have been accepted as ‘routine’ by one may have been of great concern to another.”
17. Following its work in Singapore harbour, Vampire sailed to Hong Kong. During a dive there on 6 November 1960 Mr Reynolds was found on the sea bottom, blacked out. He said he had suffered oxygen poisoning. On return to Australia around Christmas time, Mr Reynolds said he started a clearance diving and theory course at the Navy’s diving school. He did not seek medical assistance in Australia in relation to either the experience in Singapore with the bomb and mine disposal team or the incident in Hong Kong, because he did not trust the medical staff. Moreover he did not want to admit weakness. He remained a clearance diver but his diving was restricted to the minimum required to keep up his hours.
18. A statement made by Denis Appel on 7 August 2003 was admitted in evidence (exhibit A3).. Mr Appel served in the Navy from November 1959 to about December 1969. He has known Mr Reynolds since Mr Appel did his clearance diving course in 1960. Mr Appel stated that while they did not serve together, he also was seconded to the Royal Navy in 1964. During the secondment he served in Singapore Harbour as part of a clearance diving team whose job was to locate ordnance, mark it with a buoy or manoeuvre it into deeper water. Mr Appel described the condition of the water as being similar to a septic tank, with little visibility and thus requiring divers to operate only by feel. A major concern was not knowing whether ammunition was primed. In summary Mr Appel stated “ … absolute filth, exposed skin, black water, deep water, tidal currents and unknown world war two ordnance is thrown in for good measure, such as were experienced in Singapore back then, it is about as hazardous as it gets.”
19. Asked to explain why he did not mention his service in Singapore Harbour until after the Commission had informed him that the Hong Kong incident did not occur during his periods of operational service, Mr Reynolds said that he had followed advice from a veterans’ organisation in completing the claim form dated 15 June 2000 (T5). He agreed that the claim referred only to the incident in Hong Kong and not to service in Singapore. The applicant said he told the veterans’ adviser that the incident in Hong Kong exacerbated his drinking condition that started because of the work he did with the bomb clearance team in Singapore harbour. Mr Reynolds disputed that he made no mention of the Singapore experience until his claim in respect of the Hong Kong incident was rejected. He pointed out that his letter to the Department of 3 August 2000 noted that in his daily work with the bomb and mine disposal team “ … we worked with unexploded ordinance [sic] rendering it safe, or disposing of it in other ways.” (T9-25). Referring to the transcript of proceedings before the Board on 27 September 2001 (exhibit R5), Mr Bunn asked Mr Reynolds if he knew why his experiences in Singapore Harbour were not highlighted at the Board’s hearing. The applicant’s response was that his representative on that occasion was given wrong advice when he took over the matter from his predecessor.
20. Following his discharge from the Navy in November 1961, Mr Reynolds worked firstly as a travelling salesman selling haberdashery to small businesses. After a period in the public service he commenced fourteen years employment with Nestlé Australia Limited from 1964 to 1978, working in various positions including sales promotions manager, district sales manager and state manager. He then worked with Penfolds Wines Pty Limited from 1978 to 1982, holding the position of state manager, supervising 25 staff and responsible for all aspects of sales and administration including oversight of exports. According to his work history (exhibit A6) from 1982 to 1987 he was a self-employed operator of a delicatessen and a coffee shop. His final position was at the Vales Private Hospital from 1987 to 1989, where he set up the catering and cleaning operations.
21. Mr Reynolds married in 1964 and they had a son, Hunter, in 1972. Mr Reynolds said he had many regrets about his marriage, which ended about fifteen years ago. Disputes at home were mainly about the applicant’s drinking, moodiness and fights with his son.
22. A statement by the applicant’s son, Hunter John Reynolds dated 18 June 2003 was admitted in evidence (exhibit A2). Hunter Reynolds recalled the applicant having to sleep aboard his cabin cruiser following fights with his wife. He also recalled that when the applicant was drunk he would argue with his wife about petty matters. Further he stated that “I don’t think he realised how much alcohol was affecting him until Mum left him.” When he went out fishing on the cruiser with the applicant, Hunter Reynolds said the applicant would frequently become so affected by alcohol that he would be unable to steer the boat and keep his balance. He recalled seeing the applicant go swimming no more than five times and never go diving.
Dr Lambeth
23. Dr L Lambeth, psychiatrist, prepared a report dated 7 November 2002 for the applicant’s solicitors (exhibit A1). During his telephone evidence he said that he has treated the applicant, having seen him on six occasions. At the time of preparing the report he had seen Mr Reynolds three times. Dr Lambeth said he has prescribed Cipramil to help the applicant’s anxiety. He considers Mr Reynolds has responded well to this treatment but he still needs to cut down his drinking from six stubbies a day.
24. Dr Lambeth was given a history that referred to the applicant’s diving experiences with the Royal Navy team in Singapore in October 1960. Mr Reynolds described the difficult diving conditions and the fear of not knowing what he was touching as he went about the task. The report quoted the applicant: “It scared the living hell out of me. I didn’t drink or smoke up to that stage, but I did after. I wasn’t much of a diver, either after that.” After the Singapore experience Mr Reynolds told Dr Lambeth that he started drinking every day and was drunk almost every night. It is apparent from the report that Mr Reynolds informed Dr Lambeth about the oxygen poisoning incident while diving in Hong Kong.
25. In cross-examination Dr Lambeth admitted that he did not ask Mr Reynolds about any training he might have received in disarming or removing ammunition. However Dr Lambeth, who advises the Department of Defence concerning mental health policy and is a Wing Commander in the Royal Australian Air Force, said that from his own knowledge and experience he was aware that Mr Reynolds would have undertaken appropriate training. Dr Lambeth was not aware at the time of preparing his report that the applicant’s initial claim for pension attributed his alcohol abuse to the impact of the Hong Kong diving incident.
26. Dr Lambeth noted that Mr Reynolds has had three overdoses and suffers from depression and anhedonia. He conducted two clinical tests to assess the applicant’s depression. The results showed Mr Reynolds to be suffering from a serious degree of present state depression. Dr Lambeth’s diagnosis was PTSD, chronic dysthmic disorder and alcohol abuse, all three conditions having been brought on by service but in particular the dives in Singapore. Dr Lambeth considers the alcohol abuse is secondary to the problems brought on by the experience in Singapore and is a form of self-medication.
Dr Haik
27. Dr Haik, consultant psychiatrist, diagnosed avoidant personality disorder in his report dated 8 August 2002 (exhibit R1). The basis for the diagnosis was the applicant’s history of social uneasiness that Dr Haik considered was evident in his early years in the Navy. That history referred to the period between 1956 and 1959 when the applicant was posted to the diving school at Rushcutters Bay, Sydney. Mr Reynolds told Dr Haik that he preferred to work rather than join his diving colleagues at the hotel. He added that he did not have a girlfriend or family in Sydney. On returning to Rushcutters Bay following the relevant periods of service in Singapore and Hong Kong, Mr Reynolds said he became part of the drinking clique and his drinking was a habit. Mr Reynolds said that thereafter he would drink because alcohol helped him talk to people.
28. In Dr Haik’s opinion, the applicant began to develop avoidant personality disorder in early adulthood and it was a result of a genetic / learned influence from his family. It was still evident today in his social isolation, failure to establish an intimate relationship after his divorce many years ago, his general social awkwardness and being without friends. Dr Haik stated that the applicant’s personality disorder was the cause of his penchant for alcohol use. “The alcohol is not the cause of his social or interpersonal problems: for him it is a ‘cure’ for his social apprehension.” In a later report dated 31 July 2003 (exhibit R2), Dr Haik opined that Mr Reynolds did not satisfy SoP 143 of 1995 concerning personality disorder (as amended by SoP 13 of 1997) because he did not experience a ‘catastrophic experience’ immediately preceding an enduring personality change. Rather, the applicant’s personality disorder preceded his Navy service.
29. Dr Haik disagreed with the diagnosis of PTSD principally because, in his view, Mr Reynolds did not experience a traumatic event while diving in Singapore Harbour. Further, he thought that Dr Lambeth did not appreciate that Mr Reynolds had been trained in how to deal with unexploded bombs and that he saw himself at the time, as he had told Dr Haik, as feeling “ten foot tall and bullet-proof”.. For similar reasons, Dr Haik rejected a diagnosis of depressive disorder. Mr Reynolds had not experienced a severe psycho-social stressor during his periods of operational service. Dr Haik went through each of the diagnostic criteria for alcohol abuse and alcohol dependence according to SoP 76 of 1998. He concluded that Mr Reynolds did not satisfy the criteria.
consideration
30. Having regard to ss. 120 and 120A of the Act and the principles expressed in cases including Repatriation Commission v Hill (2002) 69 ALD 581, Benjamin v Repatriation Commission (2001) 34 AAR 270, Repatriation Commission v Budworth (2001) 66 ALD 285, Repatriation Commission v Deledio (1998) 49 ALD 193, I must undertake the following steps in the following order:
·characterise or identify the psychiatric problems exhibited by the applicant (Budworth at 292) on the basis of reasonable satisfaction (i.e. on the balance of probabilities: Fogarty v Repatriation Commission (2003) 37 AAR 363, Repatriation Commission v Smith (1987) 74 ALR 537)..
·identify the hypothesis connecting the condition so identified with the circumstances of the particular service rendered by the applicant;
·consider if there is material pointing to the hypothesis; and
·consider if the hypothesis is reasonable taking into account, if applicable, the relevant SoP in force at the time that the Tribunal undertakes the review of the decision. As the hypothesis comprises a number of links or sub-hypotheses in relation to PTSD and alcohol abuse, each of these must be reasonable for his claim to succeed: McKenna v Repatriation Commission (1999) 29 AAR 70.
If the hypothesis is reasonable, it is taken to be reasonable for the purposes of the Act unless:
·any one or more of the facts relied on in the material pointing to the hypothesis is disproved beyond reasonable doubt; or
· the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
Avoidant personality disorder
31. The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) states that the essential feature of avoidant personality disorder is “ … a pervasive pattern of social inhibition, feelings of inadequacy, and hypersensitivity to negative evaluation that begins by early adulthood and is present in a variety of contexts.” (at 662) Further, according to DSM-IV “The major problems associated with this disorder occur in social and occupational functioning. The low self-esteem and hypersensitivity to rejection are associated with restricted interpersonal contacts. … The avoidant behaviors can also adversely affect occupational functioning because these individuals try to avoid the types of social situations that may be important for meeting the basic demands of the job or for advancement.” (at 663)
32. Dr Lambeth’s evidence was that he would not expect a youth from the country, who suffers from avoidant personality disorder, would want to enlist in the Navy and especially not request to join the clearance diving team. Mr Reynolds would thereby be risking negative evaluation and rejection. Dr Lambeth thought it difficult to reconcile the applicant’s lengthy, post service career in sales and managerial positions with such a pervasive and inflexible condition as avoidant personality disorder. He did allow in cross-examination, however, that the applicant’s abstaining from alcohol consumption with his colleagues prior to his experiences in Singapore Harbour could suggest social inhibition. But Dr Lambeth would not diagnose avoidant personality disorder merely because Mr Reynolds demonstrated one of the minimum of four diagnostic criteria required by DSM-IV.
33. On the other hand Dr Haik did not accept that the applicant’s apparently good response to Cipramil, an anti depression as well as anti anxiety agent, contra-indicated avoidant personality disorder. Dr Haik felt that the applicant’s unexplained decision to enlist was possibly a youthful fantasy and a solution to his social awkwardness. Dr Haik explained that a person with avoidant personality disorder could accept a managerial position so long as they did not have to relate to staff and others socially.
34. I prefer Dr Lambeth’s evidence on this issue and conclude to my reasonable satisfaction that avoidant personality disorder is not an appropriate diagnosis of the applicant’s condition, mainly because:
- the applicant has demonstrated that he is prepared to take personal risks in new activities in his career. For example, when offered a position as a Navy cook, he opted for clearance diving, a new speciality in the Navy and one that offered a challenge. During his post service career he worked in sales work and had his own business in the food industry. (cf criterion 7 in DSM-IV).
- there is scant evidence that the applicant viewed himself as personally unappealing or inferior (cf criterion 4)
- enlisting in the Navy suggests that Mr Reynolds does not avoid occupational activities that involve significant interpersonal contact because of fears of criticism or disapproval (cf criterion 1).
PTSD
35. In Budworth the Full Court said that (at 292):
… the decision-maker has to identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contacted. It is not a matter of nomenclature or attaching a traditional medical label to the collection of symptoms. … Once the decision-maker has identified, to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved …
36. Dr Lambeth recorded the applicant’s symptoms, which were current and had been prevalent for many years:
- experiencing repeated, disturbing memories and dreams about the dives in Singapore.
- avoidance of thinking or talking about the experience of the dives in Singapore Harbour.
- avoiding swimming and having anything to do with Navy divers.
- difficulty in falling and staying asleep, irritability and aggression.
- easily startled and suffers from poor concentration.
- feels cut off from people.
- heavy consumption of alcohol as a form of self-medication for his anxiety and depression.
Dr Lambeth’s evidence was that his diagnosis of PTSD depended upon his accepting the applicant’s history and account of his symptomatology.
37. Dr Haik wrote that “The issue of the Singapore dive being stressful is a reasonable hypothesis.” (Exhibit R1). However, he did not agree with a diagnosis of PTSD. Dr Haik considered the diving in Singapore Harbour did not expose Mr Reynolds to actual explosions, death or injury and moreover he had been trained how to carry out his tasks of moving ammunition which may have been primed. Dr Haik also placed little emphasis on the threat of death or serious injury from the unstable ammunition, drowning or, more remotely, from infection or sea-snake bite. This approach appears to down play the applicant’s evidence that he did not know whether the ammunition was unstable, that he could not see what he was touching and moving, and that he was terrified by the experience.
38. I prefer the evidence of Dr Lambeth. He is a psychiatrist whose professional focus is the mental state of service personnel in all three arms of the defence forces. In addition greater weight can be given to Dr Lambeth’s evidence as the applicant’s psychiatrist, whose treatment has brought about a good response since the applicant has advised that he feels more settled and less aggressive. I accept Dr Lambeth’s diagnosis of PTSD and therefore am reasonably satisfied under s.120(4) of the Act that Mr Reynolds suffers from that condition.
Alcohol abuse
39. As previously noted, Dr Lambeth also diagnosed alcohol abuse. He stated in his report that:
This is his way of trying to deal with his symptoms. Note that he is hyperaroused, he has bad recollections of his dive in Singapore and he is depressed. Alcohol is a method that many people turn to deal with these symptoms, despite the fact that, in the long run, alcohol really only worsens the situation. Mr Reynolds has been no different to others in turning to alcohol in this regard, and the diagnosis of Alcohol Dependence can certainly be sustained.
In oral evidence Dr Lambeth confirmed his diagnosis of alcohol abuse. I consider he erred in his reference to alcohol ‘dependence’ quoted above.
40. Dr Singham’s opinion also suggests that Mr Reynolds suffered from alcohol abuse as his diagnosis of mild cardiomyopathy was on the basis of alcohol abuse.
41. DSM-IV sets out the following diagnostic criteria for substance abuse, altered below by replacing ‘substance’ with ‘alcohol’, it being a specific form of substance abuse (at pp182-3 and 196):
A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12- month period:
(1) recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home (eg repeated absences or poor work performance related to alcohol abuse; alcohol-related absences, suspension, or expulsions from school; neglect of children or household)
(2) recurrent alcohol use in situations in which it is physically hazardous (eg driving an automobile or operating a machine when impaired by alcohol use)
(3) recurrent alcohol -related legal problems (eg arrests for alcohol-related disorderly conduct)
(4) continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol (eg arguments with spouse about consequences of intoxication, physical fights)
B. The symptoms have never met the criteria for alcohol dependence.
42. Dr Haik would not diagnose alcohol abuse because Mr Reynolds was in almost continuous employment from 1961 to 1993, and his marriage ended because of a low grade resentment and bitterness, not alcohol abuse. Mr Reynolds has not had recurrent alcohol related legal problems nor been charged with alcohol related driving offences. In Dr Haik’s opinion, the applicant’s use of alcohol has been due to his avoidant personality disorder and there was no evidence that he continued to use alcohol despite recurrent interpersonal or social problems (cf. criterion A4).
43. The applicant’s evidence and that of Hunter Reynolds is that alcohol contributed significantly to the poor relationship that the applicant had with his son and to the failure of his marriage. Hunter Reynolds referred to an occasion of a parent-teacher night, events that the applicant did not usually attend as his mother was far more involved in his schooling. His father came home late and was drunk, thus causing them to miss a large part of the meeting. He referred also to fist fights with his father on at least three occasions. He attributed these fights to his father’s irritability due to intoxication. He recalled that his father when drunk would have arguments with his mother over petty matters and would not accept criticism from her.
44. Also relevant was the history that Mr Reynolds gave Dr Haik that his alcohol consumption led to his termination of employment in a government position and at Penfolds. I consider that this evidence works against Dr Haik’s opinion. Finally, there was the advice from Dr B Ayres, cardiologist, to the applicant’s GP dated 23 December 1992 (exhibit A5). After concluding from the results of an echocardiogram and exercise test that Mr Reynolds had “ … borderline left ventricular function and a dilated left ventricle with therefore some deterioration from the past”, Dr Ayres advised him “ … to avoid excessive alcohol or he may develop cardiomyopathy.”
45. There is evidence, therefore, that criteria A1 and A4 are met during the required twelve month period. I am reasonably satisfied that Mr Reynolds suffers from alcohol abuse.
46. At this point the tribunal must follow the four stage approach to the application of ss.120(3) and 120A of the Act laid down by the Full Court in Deledio.
47. There is material that points to the hypothesis put forward that connects the applicant’s secondary cardiomyopathy with congestive cardiac failure with his heavy consumption of alcohol following his experiences on Singapore Harbour. As for the second Deledio step, there are relevant SoPs in force, ie. SoP 3 of 1999 concerning PTSD (as amended by SoP 54 of 1999), SoP 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse, and SoP 19 of 1998 concerning Cardiomyopathy (as amended by SoP 22 of 2002).
48. In relation to stage 3, is the sub-hypothesis connecting his PTSD consistent with factor 5(a) of the template in SoP 3 of 1999 which refers to an applicant “ … experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder.” Clause 8 of the SoP (as amended) contains the following definition:
“experiencing a severe stressor” means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
49. The tribunal must form an opinion as to the reasonableness of the sub-hypothesis. While proof of facts is not in issue at this stage of the tribunal’s decision-making, if the sub-hypothesis does not fit within the template of the SoP, it is not a reasonable sub-hypothesis. The Full Federal Court in Bull v Repatriation Commission (2001) 66 ALD 271 has provided the following guidance for determining whether a hypothesis is reasonable (at 276):
It is important to understand the following about East [East v Repatriation Commission (1987) 16 FCR 517]. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis … .
50. The applicant’s evidence was that he was terrified. There was the unseen danger of working with unexploded ammunition at a substantial depth in vastly different and more difficult conditions from those he was used to. He was quite sure in his evidence that he began to drink, and quite heavily, after this experience in Singapore Harbour. He then became part of a group who drank frequently and it became a habit. Dr Lambeth accepted that such dives were traumatic events and that the clinical onset of PTSD was following those dives.
51. The material before the tribunal also points away from the sub-hypothesis. Mr Bunn submitted that Mr Reynolds lacked credibility. Mr Reynolds had not highlighted his experience in Singapore until he was aware that his claim in respect of the incident in Hong Kong had been unsuccessful. Mr Bunn submitted that, apart from the applicant’s evidence and his history to specialists, there was no material before the tribunal that the dives in Singapore amounted to experiencing severe stressors. However, the applicant’s explanation for the content of his initial claim form and the conduct of the case before the Board was that he had acted on advice. Mr Colborne submitted that it was not remarkable that a near death incident, such as the incident in Hong Kong, was the focus of the advocate’s arguments to the Board to the exclusion of whatever happened in Singapore Harbour. At any rate, Mr Reynolds had not hidden that experience from the Commission because it was mentioned in his letter of 3 August 2000.
52. In addition Mr Bunn submitted that Dr Lambeth’s opinion was based on a history that should be seen as unreliable. There is also Dr Haik’s opinion that, although the applicant’s experience in Singapore Harbour was capable of being stressful, in fact it was not stressful since nothing actually happened during the dives and the applicant had been trained in this type of exercise and knew what was expected. Dr Haik was asked to consider whether the applicant’s experiences during those dives, viewed objectively by a reasonable person in the applicant’s position experiencing it, was capable of conveying and did convey the risk of death or serious injury. The question was derived from Mansfield J’s statement of principle in Stoddart v Repatriation Commission (2003) 197 ALR 283 (approved by the Full Court in Woodward v Repatriation Commission (2003) 200 ALR 332). Mansfield J stated:
[55] In my judgment the language of the definition of "experiencing a severe stressor" caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury or to physical integrity.
Dr Haik’s response was that a reasonable person of the applicant’s age working as a clearance diver would be uneasy, and they would have a perception of death or serious injury. Equally, he said, so do people when they are driving in traffic on a wet road.
53. I find that there is material pointing to the dives in Singapore Harbour being severe stressors. On the applicant’s evidence and the history given to Dr Lambeth and Dr Haik, the material points to his having experienced severe stressors prior to the clinical onset of PTSD, which Dr Lambeth stated was an immediate consequence of the dives. The material points to the sub-hypothesis being reasonable. It fits factor 5(a) of SoP 3 of 1999. Moreover I do not consider the sub-hypothesis to be an obviously fanciful or incredible hypothesis.
54. Moving to step 4 of Deledio, Mr Bunn submitted that Mr Reynolds was not a credible witness and that his evidence about the impact of the dives in Singapore Harbour should be rejected. I must be satisfied beyond reasonable doubt that Mr Reynolds was not terrified during those dives and did not experience an event that involved a threat of death or serious injury. Neither party bears an onus of proof: s.120(6).
55. There is material in the Alcohol Questionnaire (T5-17) that refers to his starting to drink alcohol after the Hong Kong incident, implying that what happened to him a little over a week earlier in Singapore Harbour was not a severe stressor. Despite that, I am not satisfied beyond reasonable doubt that what happened during those dives in Singapore did not terrify Mr Reynolds and that he did not hold a reasonable fear for his life. I am not satisfied beyond reasonable doubt that I should reject his evidence. Thus the sub-hypothesis that Mr Reynolds suffers from the war-caused disease of PTSD is not displaced.
56. What then of the sub-hypothesis that the applicant’s alcohol abuse is war-caused? There is material that points to the sub-hypothesis connecting the applicant’s alcohol abuse with experiencing a severe stressor. Dr Lambeth’s evidence was that it is extraordinarily common to find heavy consumption of alcohol by service personnel suffering from PTSD, as a form of underlying self-medication. It is part of the sub-hypothesis that, in the opinion of Dr Lambeth, the alcohol abuse is secondary to the PTSD. The relevant SoP is 76 of 1998, which states:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
…
57. Mr Colborne submitted that factor 5(b) is satisfied. The material referred to above in the discussion about PTSD is relevant in relation to the question whether Mr Reynolds experienced a severe stressor while diving in Singapore Harbour.
58. As for clinical onset, I note that the applicant’s evidence was that he started to drink after the experience in Singapore Harbour. He told Dr Lambeth that following the Singapore Harbour “It caused me to drink - it settles you and you forget all the things that happened. After Singapore I didn’t want to dive again.” (exhibit A1). He became intoxicated almost every night and that “Ten bob would buy you twenty pints in the NAAFI in Singapore.” (exhibit A1). On return to Australia he continued his excessive drinking. After the bar would close at HMAS Watson base, Mr Reynolds and his friends would jump the fence and go to the hotel nearby and continue drinking. From that time on, he drank at least ten schooners of beer a day until approximately five years ago when he managed to cut back by about half. Dr Lambeth’s report concluded that:
I believe that it is more probable than not that his alcohol abuse is due to his dive in Singapore. This is what he frequently comes back to, it is the content of his intrusive thoughts and his dreams and it is the incident which has, in all probability, caused his difficulties.
59. The applicant’s excessive drinking continued when he was working for the Department of Agriculture in 1962 to 1963 (exhibit A 6). In oral evidence he referred to an instance when his supervisor disciplined him for being in a pub at lunchtime when he should have been visiting a dairy.
60. There is also the report by Dr Y Bailey, the applicant’s GP, in the material before the tribunal regarding clinical onset of alcohol abuse. Dr Bailey’s letter, received by the Department on 28 July 2000 (T6), noted that Mr Reynolds had a life threatening event that led to a marked escalation in his alcohol consumption, 15-20 standard drinks a day.
61. Mr Reynolds told Dr Haik that he used drinking as a way of coping with his fear. He became part of a clique of heavy drinkers in the clearance diving team. The history obtained by Dr Haik noted that Mr Reynolds drank to forget about his fear experienced in Singapore Harbour. Dr Haik’s view was that Mr Reynolds began to drink heavily because of the camaraderie of clique, not because he needed alcohol so that he could cope with his fears. Dr Haik drew attention to the applicant’s claim that he started to drink “heavier” after Far East Strategic Reserve service, which was inconsistent with his contention that the Singapore Harbour dives caused him to drink excessively. It should be noted, however, that the alcohol questionnaire states that the applicant’s consumption of alcohol on a regular basis began in 1960, albeit in the context of the diving incident in Hong Kong being the relevant stressor.
62. The following approach to determining clinical onset of a disease was adopted by the tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670 and was approved by Branson J in Repatriation Commission v Cornelius [2002] FCA 750 par 26 :
… there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.
The histories taken by Dr Lambeth and Dr Haik regarding the applicant’s symptoms, and Dr Lambeth’s opinion expressed in oral evidence that the alcohol was inextricably tied up with the onset of PTSD, bear upon the question of clinical onset within the requisite period (Lees v Repatriation Commission (2002) 36 AAR 484 par 22). There is a temporal connection between the applicant’s commencing to drink alcohol heavily and with his experiences in Singapore Harbour. As I accept that the material points to the dives in Singapore Harbour being severe stressors, the material also raises the reasonable hypothesis that clinical onset of alcohol abuse occurred within the two year period referred to in Factor 5(b). For completeness, I add that the material additionally points to factor 5(a) raising the reasonable sub-hypothesis that connects alcohol abuse with the applicant’s period of operational service in Singapore, through his service related PTSD.
63. So far as step 4 in Deledio’s case is concerned, the tribunal must be satisfied beyond reasonable doubt that the evidence demonstrates that the sub-hypothesis cannot be sustained.
64. In relation to whether a decision-maker will be satisfied beyond reasonable doubt that an applicant’s disability was not from a war-caused disease, the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 stated that (at 416):
Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination. (per Mason CJ, Deane J, McHugh J )
I am unable to be satisfied, beyond reasonable doubt, of the unreliability of the applicant’s account of what he experienced on his dives in Singapore Harbour. Nor am I satisfied beyond reasonable doubt that his evidence about starting to drink alcohol, heavily, because of those dives, as opposed to the incident in Hong Kong that he said exacerbated his reaction to the earlier dives, is false. I am not satisfied that the facts necessary to sustain the sub-hypothesis in SoP 76 of 1998, have been negatived beyond reasonable doubt. Therefore, I find that the fourth step is satisfied and, in accordance with s.9 of the Act, that the applicant’s disease of alcohol abuse was war-caused.
65. Since I have found that the applicant’s alcohol abuse was war-caused, the Commission will concede that Mr Reynolds satisfies factor 5(b) of SoP 19 of 1998 concerning Cardiomyopathy (as amended by SoP 22 of 2002). That factor states:
(b) for men, drinking at least 250kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of secondary cardiomyopathy;
It follows that I find that there is a reasonable hypothesis raised in this case connecting the applicant’s secondary cardiomyopathy with congestive cardiac failure with operational service and thus is a war-caused disease.
66. The decisions under review should be set aside. In substitution I decide that the applicant’s alcohol abuse and secondary cardiomyopathy with congestive cardiac failure are war-caused diseases. The matter is remitted to the Commission for assessment.
I certify that the preceding 66 paragraphs are a true copy of the decision and reasons for decision herein of P.J. Lindsay, Senior Member:
Signed:
..............................................................................
(Associate)
Date of Hearing 25 November 2003
Date of Decision 12 December 2003
Applicant’s Counsel Mr C. ColborneRespondent’s Representative Mr N. Bunn, Dep’t of Veterans’ Affairs.
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