Riley and Repatriation Commission

[2003] AATA 578

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 578

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2002/239

VETERANS APPEALS  DIVISION		)
Re		JOHN ALFRED RILEY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr B.H. Pascoe, Senior Member

Dr P. Fricker, Member

Date19 June 2003

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

........(sgd) B.H. Pascoe......

Senior Member

CATCHWORDS

Veterans - panic disorder - whether diagnosis made out - cerebral ischaemia - whether factor of suffering panic disorder satisfied.

Veterans’ Entitlements Act 1986

Instrument No. 9 of 1999, as amended by No. 58 of 1999 concerning panic disorder

Instrument No. 52 of 1999 concerning cerebrovascular accident

REASONS FOR DECISION

19 June 2003

Mr B.H. Pascoe, Senior Member

Dr P. Fricker, Member

1.      This is an application to review a decision of the Veterans’ Review Board (“VRB”) of 19 February 2002 which affirmed a decision of the respondent of 27 March 2001 to refuse a claim made on 26 February 2001 for conditions of panic disorder and cerebral ischaemia as war-caused.

2. At the hearing the applicant was represented by Mr D. DeMarchi, a solicitor, and the respondent by Mr K. Rudge, an advocate with the Department of Veterans’ Affairs. Evidence was given by the applicant, Mr J. Riley, and two psychiatrists, Dr E. Cole and Dr T. Gidley. In addition to the documents provided by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T27) the following documents were tendered by the parties:-

Report of Dr E. Cole dated 11 June 2002  Ex A1

Report of Prof. K. Myers; general surgeon, dated 2 August 2002     Ex A2

Letter from Prof. K. Myers dated 23 August 2002  Ex A3

Lifestyle Questionnaire completed by applicant dated 26 September 2002 Ex 4

Certificate of Discharge of applicant dated 4 September 1946          Ex A5

Clinical Notes of Dr I. McMaster, local medical officer   Ex R1

Transcript of VRB hearing of 19 February 2002  Ex R2

Report of Dr T. Gidley dated 15 November 2002  Ex R3

3.      Mr Riley served in the Australian Army from 21 January 1942 to 4 September 1946.  He served in New Guinea and Bougainville and the whole of his service constituted eligible war service and operational service under the Veterans’ Entitlements Act 1986 (“the Act”). He has the following conditions accepted as war caused:-

Penetrating shell wound of skull

Periarthritis left shoulder

Post traumatic stress disorder

Bilateral Sensorineural hearing loss

Pterygiae

and is currently in receipt of pension at 90% of the general rate.

4. As Mr Riley had operational service, s.120(1) of the Act provides that an injury or disease shall be determined as war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) provides that the Tribunal shall be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the person. As the claim was made after 1 June 1994, s.120A of the Act requires the Tribunal to assess the reasonableness of a hypothesis in accordance with any SoP issued by the Repatriation Medical Authority or any relevant determination or declaration under the Act. In this case the relevant SoPs are:

Instrument No 9 of 1999 as amended by No. 58 of 1999 concerning panic disorder

Instrument No 52 of 1999 concerning cerebrovascular accident

Each of the relevant SoPs sets out the factors, one of which must relate to the veteran’s service, which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised.

The factors relied upon by Mr Riley in relation to panic disorder was 5(a) “experiencing a severe stressor within the two years immediately before the clinical onset of panic disorder”.  For cerebral ischaemia the factor relied upon was 5(c) “suffering from panic disorder before the clinical onset of cerebrovascular accident”.

5.      It was not in dispute that Mr Riley suffered from cerebral ischaemia and, if he suffered from war caused panic disorder prior to the clinical onset, that condition should be determined as war caused.  Equally, there was no dispute that the experiences of Mr Riley during his service satisfied the required factor for the SoP relating to panic disorder.  The sole issue for the Tribunal was whether Mr Riley suffered from panic disorder prior to the cerebral ischaemia and within two years of those war time experiences.

6.      Mr Riley is 80 years of age.  He suffered a stroke in January 2001 and is now confined to a wheel chair and requires assistance for many activities.  With his age and disabilities he was not a good historian in his evidence of the Tribunal.  Questions relating to probable panic attacks were primarily answered in relation to the period after his stroke.  He said that it took some five years after the war to recover from malaria and nerves.  He had never travelled interstate or overseas because of concern in relation to his health and a need to protect that health. 

7.      Mr Riley was examined by Dr Cole on 31 May 2002 and a report dated 11 June 2002 was provided.  In that report, Dr Cole provided the following opinion:

“Mr Riley is suffering from a chronic post traumatic stress disorder of mild to moderate degree.  During the course of the interview he demonstrated a degree of emotional incontinence but this was probably due, at least in part, to the effects of his recent stroke.

The description he gave of the attacks in which he felt nervous, upset and frightened would be consistent with his suffering from acute anxiety or panic attacks, while his dislike of crowds points to a mild degree of agoraphobia.  One could argue therefore that he is suffering from DSM 330.21 Panic Disorder with Agoraphobia, although in order to elicit the symptoms I had to ask a number of direct questions and I am not as convinced of the diagnosis as I might otherwise be.  Furthermore, under D it states that the panic attacks are not better accounted for by another mental disorder including post traumatic stress disorder.  This would seem to suggest that those symptoms consistent with panic disorder are already embraced in the diagnosis of post traumatic stress disorder, although I would think that the relationship between panic attacks and the development of a stroke would not be effected by the niceties of classification.  I shall not comment further as I believe it calls more for a legal than a medical opinion”. 

The history recorded by Dr Cole which led to the opinion of Mr Riley suffering panic attacks was stated as:-

“Sometimes he became nervous or upset for no reason.  At these times he felt depressed.  His heart began to beat quickly and his stomach felt as though it were churning.  He felt frightened and thought that the end had come.  He began to shake and felt dizzy.  He could have these feelings every day, particularly if something unusual happened.  He had been to only one football match since the war and that was thirty years ago when he found that he could not stand the crowds and the noise.  He avoided going into crowded shops as it made him feel nervous”.. 

In his oral evidence, Dr Cole said that panic disorder was not necessarily accounted for by Post Traumatic Stress Disorder and he believed that Panic Disorder could be regarded as a separate diagnosis.  However, he accepted that he had more reservations about a diagnosis of  Panic Disorder than he did of Post Traumatic Stress Disorder.  He did not see any real distinction between “panic attacks” and “anxiety attacks”..  He considered that panic attacks were normally incapacitating and, generally, for a discrete period.  He accepted that the history given by Mr Riley was less convincing of panic attacks and there was little history indicating that any attacks were necessarily incapacitating.

8.      Dr Gidley examined Mr Riley on 10 October 2001 and again on 15 November 2002.  He provided reports dated 10 October 2001 (T25) and 15 November 2002 (Ex R3).  In both reports Dr Gidley diagnosed Post Traumatic Stress Disorder but did not consider that Mr Riley suffered from a separate condition of Panic Disorder.  While he noted episodes of heightened anxiety.  Dr Gidley was of the opinion that these were explained by the condition of Post Traumatic Stress Disorder.  In his oral evidence, Dr Gidley said that panic disorder was a form of anxiety disorder categorised by attacks which were episodic and not usually linked to any precipitating event, potentially incapacitating, often with physical symptoms with the patient being concerned at the possibility of further attacks.  In Mr Riley’s case, Dr Gidley said that there was constant and persistent anxiety which had increased since his stroke and, being usually triggered by recalling a wartime event, was a common factor in Post Traumatic Stress Disorder.  He was quite firm in his view that Mr Riley’s history did not indicate a diagnosis of Panic Disorder. When quoted the history taken by Dr Cole, Dr Gidley said that this would not have led him to the diagnosis of Panic Disorder.

9.      Dr Parkin a consultant psychiatrist, had provided three reports relating to Mr Riley.  The first two dated 7 March 1995 and 25 January 2000 accepted a prior diagnosis of Post Traumatic Stress Disorder and were concerned solely with an assessment of the level of impairment by that condition.  A third report dated 7 August 2001 was for the purpose of considering the claimed condition of Panic Disorder.  His conclusion was:-

“Co-morbidity is common in Posttraumatic Stress Disorder but the question remains as to whether or not this constitutes diagnosable panic disorder.  After taking the history from him and spending some considerable time over it I believe that, on the balance of probabilities, that he does warrant the diagnosis of panic disorder and that I have listed the symptoms that he experiences.  I believe this disorder has been of such a degree as to require treatment in the past and even now would benefit from treatment.  This disorder is of course superimposed upon a general level of anxiety which has been diagnosed as Posttraumatic Stress Disorder and I did not go through today to check all of the symptoms of this since this is already an accepted disability”. 

It is relevant to note that in neither of the earlier reports had Dr Parkin noted any history of panic attacks.  In his third report there is little noted of any such history other than a reference to “anxiety each day” from which Riley found it “hard to try and distance himself”.  Unfortunately, Dr Parkin is now retired and was unavailable to give evidence at the hearing. 

10.     Dr Peyton, a psychiatrist, examined Mr Riley in March 1994.  He diagnosed Post Traumatic Stress Disorder in his report of 31 March 1994 (T5) and noted the development of hypochondriacal preoccupation, feeling depressed and anxious.  He did not note any history of panic attacks.

11.     It was submitted for the applicant that the Tribunal should find that he suffered from panic disorder which condition had been  diagnosed by both Dr Parkin and Dr Cole.  For the respondent, it was submitted that neither Dr Peyton nor Dr Parkin had noted any symptoms of panic disorder in their examination and reports prior to Dr Parkin’s report of 7 August 2001.  It was said that the evidence of Mr Riley and the histories recorded by the psychiatrist who had examined him were consistent with his accepted condition of Post Traumatic Stress Disorder but not with a condition of Panic Disorder.

12.     While the relevant SoP for Panic Disorder is not a diagnostic tool in itself, in that the Tribunal is required to be reasonably satisfied that a veteran suffers from a condition prior to considering whether a SoP exists and upholds the proposed hypothesis connecting the condition with service, Instrument No. 9 of 1999 provides a reasonable definition of the condition as defined in DSM-IV.  The SoP states:-

(b)For the purposes of this Statement of Principles, “panic disorder”, mean a psychiatric condition characterised by the following diagnostic criteria:

(A)      the person has experienced both:

(1)       recurrent unexpected panic attacks; and

(2)(i)        has experienced at least four panic attacks in four weeks, or

(ii)in the case of fewer panic attacks, at least one of the panic attacks has been followed by 30 days (or more) of one (or more) of the following:

(a)persistent concern about having additional panic attacks; or

(b)worry about the implications of the panic attack or its consequences; or

(c)a significant change in behaviour related to the panic attacks; where

(B)the panic attacks can occur in the presence or absence of agoraphobia; and

(C)the panic attacks are not due to the direct physiological effects of a substance or a general medical condition; and

(D)the panic attacks are not better accounted for by another mental disorder, such as social phobia, specific phobia, obsessive-compulsive disorder, post traumatic stress disorder, or separation anxiety disorder.

attracting ICD-9-CM code 300.01 or 300.21.

“panic attack” means a condition, as defined in DSM-IV, meeting the following criteria:

the person has experienced a discrete period of intense fear or discomfort, in which four (or more) of the following symptoms developed abruptly and reached a peak within 10 minutes:

(1)       palpitations, pounding heart, or accelerated heart rate; or

(2)       sweating; or

(3)       trembling or shaking; or

(4)       sensations of shortness of breath or smothering; or

(5)       feeling of choking; or

(6)       chest pain or discomfort; or

(7)       nausea or abdominal distress; or

(8)       feeling dizzy, unsteady, light headed or faint; or

(9)derealisation (feelings of unreality) or depersonalisation (being detached from oneself); or

(10)     fear or losing control or going crazy; or

(11)     fear of dying; or

(12)     paresthesias (numbness or tingling sensations); or

(13)     chills or hot flushes;

There was no disagreement between Dr Cole and Dr Gidley that the SoP provided an appropriate description of Panic Disorder for diagnostic purposes. 

13.     The evidence of Mr Riley did not indicate a history of panic attacks.  Any episode which might approach the description of a panic attack was in the period following his stroke where he was concerned at his inability to cope and lead a satisfactory life as a consequence of that stroke.  Any prior history was of anxiety, generally in relation to other health issues and normal symptoms of Post Traumatic Stress Disorder.  We have seen nothing in the histories taken by the psychiatrists who have examined Mr Riley which would justify a diagnosis of Panic Disorder.  Dr Cole while coming to that diagnosis was “not as convinced of the diagnosis as I might otherwise be”..  It is relevant that Dr Cole did not distinguish between panic attacks and anxiety attacks.  It is relevant, also, that Dr Cole regularly appears before this Tribunal on behalf of applicants and is recognised for, at times, somewhat generous diagnoses and a reluctance to carefully measure a diagnosis of a psychiatric condition with the detailed diagnostic criteria in DSM-IV.  On balance we strongly prefer the evidence of Dr Gidley that Mr Riley has not and does not suffer from Panic Disorder.  We note that Dr Parkins belated diagnosis of Panic Disorder does not appear to be based on any history of panic attacks.  While not a psychiatrist, Dr Cooper, a specialist physician in occupational and rehabilitation medicine, examined Mr Riley on 22 January 1996.  In his report (T-6) under the heading Current Status, Dr Cooper said:-

“He cannot mow or he gets shaking attacks.  He can drive without problems and also take public transport.  He stopped playing golf and resigned because of the required competition participation and the working bees.  He tends not to go out socially.  He cannot go to football because the excitement is too much for him.

Emotionally he feels anxiety.  “I can’t stand arguments or troubles.”  He feels withdrawn and some frustration.  He dreams of his war injuries and his daily flashbacks are getting worse.  Crowds worry him”.

Notwithstanding his different specialisation, it might be expected that, if Mr Riley had been experiencing panic attacks, such would have been noted by Dr Cooper in the history taken.  We have no difficulty in agreeing with the view of Dr Gidley that the symptoms referred to by both Dr Parkin and Dr Cole represent continuing Post Traumatic Stress Disorder anxiety which may well have increased in severity following Mr Riley’s stroke.

14.     We share the view of the VRB that Mr Riley had excellent service during the war, suffered traumatic experiences and his war injuries have caused him significant difficulties both at work and in his private life.  However, the Tribunal cannot find to it reasonable satisfaction that he suffers from Panic Disorder.  As such, it cannot be an accepted condition and, as a consequence he cannot satisfy the SoP concerning Cerebrovascular Accident to allow the cerebral ischaemia to be an accepted condition.  Consequently, and somewhat reluctantly, we must affirm the decision under review. 

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.H. Pascoe, Senior Member & Dr P. Fricker, Member.

Signed:         ......C. Irons .............................
  Secretary

Date/s of Hearing  29 April 2003
Date of Decision  19 June 2003
Counsel for the Applicant          
Solicitor for the Applicant          Mr D. DeMarchi (DeMarchi & Associates)
Counsel for the Respondent     Mr K. Rudge (Departmental Representative)
Solicitor for the Respondent