McMillan and Repatriation Commission

[2003] AATA 838

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 838

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/629

VETERANS' APPEALS  DIVISION		)
Re		DEREK McMILLAN

Applicant

And REPATRIATION COMMISSION

Respondent

WRITTEN REASONS IN RESPONSE TO

APPLICATION AFTER ORAL REASONS

Tribunal Deputy President Don Muller
Mr I R Way, Member

Date4 August 2003

PlaceBrisbane

Decision For the reasons given orally at the hearing, the Tribunal affirms the decision under review. 

...............SIGNED................................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

VETERANS – generalised anxiety disorder – claimed stressors not severe psychosocial stressors for experienced petty officer – clinical onset more than 20 years after eligible service

REASONS FOR DECISION

4 August 2003 Deputy President Don Muller
Mr I R Way, Member         

1.      This is an application by Derek McMillan for review of a decision to refuse an application for medical treatment and pension for the psychiatric illness generalised anxiety disorder.

2.      Briefly, the history of Mr. McMillan so far as his service is concerned is this:

·     He entered the Royal New Zealand Navy on 13 May 1959, when he was 18 years of age (having been born on 11 March 1941).

·     He served in the Royal New Zealand Navy from that date, 13 May 1959, until 12 May 1971 (when he was 30 years of age).

·     In between time, he served in the Australian Navy from 18 July 1966 until 5 July 1968.  In the time that he was with the Australian Navy he had operational service, within the meaning of that term in the Veterans’ Entitlements Act 1986, on three separate occasions.  Between 19 May 1967 and 14 June 1967, he served aboard the HMAS Sydney on a trip to Vietnam.  Similarly, he served on the Sydney on trips to Vietnam between 20 December 1967 and 3 January 1968, and 17 January 1968 to 16 February 1968.  The Sydney was in Vung Tau Harbour for about eight hours on each of the three occasions.

·     On the Sydney he served as an engineer in the engine room/boiler room area.

·     After ceasing with the Australian Navy he went back to the New Zealand Navy where he served until 12 May 1971.

·     Mr. McMillan had risen to the rank of petty officer before he transferred to the Australian Navy.  He was a petty officer during his service in the Australian Navy.  He was a petty officer in the New Zealand Navy on discharge.  He had been temporarily demoted after a boiler incident (mentioned below), but reattained his rank.  He served in the New Zealand Navy for about three years after his Australian Navy stint.

·     During the seven years he served in the New Zealand Navy before he joined the Australian Navy, he travelled widely.  He served in ships that sailed to England, the Far-East and the Caribbean.

3.      The claim by Mr. McMillan is that during the three trips to Vietnam he was exposed to three events which were traumatic.

·     The ship’s PA system used to broadcast the received broadcasts from a North Vietnamese radio transmitter sending out propaganda messages from a woman who called herself Hanoi Jane.  She used to tell the Australian troops that they would be in danger if they came anywhere near Vietnam, or were in Vietnamese waters.  He gave evidence that he found those broadcasts to be distressing to him.

·     Whilst in Vung Tau Harbour, when he was working in the boiler room, he heard scare charges going off around the ship, from time to time.  He said that he knew about scare charges but did not know that they were going to be set off around the ship.  When the first one exploded, it made a loud noise that gave him and the others in the boiler room a fright.  However, they went back to work.  Thereafter the scare charges went off at irregular intervals.  He found that to be unsettling.

·     He sometimes passed through a mess area occupied by troops who were returning to Australia from Vietnam.  He noticed that they were sometimes in a distressed condition and that fact distressed him.

4.      Mr. McMillan also had a frightening experience on an Australian ship in which a boiler blew a piece out of the boiler that caused steam to jet out into the boiler room.  That gave him a fright.  However, that occurred during a period which is not covered by the eligible service defined in the Act.

5.      Upon leaving the Navy, he married in Brisbane and settled down in Brisbane.  He had a few jobs mostly in the labouring area for a few years and then in about 1975 he started driving trucks.  Initially, he drove delivery trucks and then later on started on semi-trailers in about 1980.  He continued driving semi-trailers doing local deliveries, some country deliveries and some interstate runs from 1980 through to about the year 2000.

6.      In about October 2000, Mr. McMillan’s wife urged him to get some psychiatric treatment.  She felt that he was not well psychiatrically.  She had formed the view that he was irritable, short-tempered and argumentative.  Mrs. McMillan had previously urged her husband to see a doctor in about 1990 and also in 1997.  He first saw a psychiatrist in 1997.

7.      Mr. McMillan gave evidence that he felt no problems himself.  However, by the year 2000 he was sick of driving semi-trailers and he had a great desire to retire.  He found driving on some of the roads around Brisbane and in particular the road from Brisbane to the Gold Coast stressful, especially driving heavy vehicles on wet roads.  In the year 2000, he decided to retire from semi-trailer driving.  He has not worked since.  He does a lot of charity work.  He has a few friends with whom he socialises at the local RSL club.

8.      So far as this claim is concerned, the Tribunal has heard evidence from the only psychiatric witness or specialist to have seen Mr. McMillan, Dr. Janice Carter.  She has diagnosed Mr. McMillan as having generalised anxiety disorder.

9.      The Respondent has conceded that Mr. McMillan has an anxiety problem.

10.     As we have said above, the reason for Mr. McMillan seeing Dr. Carter was that his wife found him to be irritable, short-tempered and argumentative.  In her report, Dr. Carter has listed those problems but then she went on to say that Mr.  McMillan also had the following problems:

·     He had developed excessive anxiety and worry with apprehensive expectations which occurred on more days than not.

·     His excessive anxiety and worry has been present for over six months starting immediately during his service in Vietnam.

·     His excessive anxiety and worry was about a number of events and activities, such as his work and study (which is meaningless in the case of Mr. McMillan.)

·     He finds anxiety difficult to control.

·     He feels restless, keyed-up, on edge and easily fatigued.

·     He has difficulty with concentration and his mind goes blank.

·     He has developed irritability.

·     His muscles become tense.

·     He has sleep disturbance with difficulty falling asleep and staying asleep and restless and unsatisfactory sleep.

11.     Mr. McMillan’s evidence to the Tribunal was to the effect that he feels good.  He is quite happy with his life.  He does not have excessive anxiety and worry and it certainly does not occur on more days than not.  As for Dr. Carter recording that it is difficult to control the worry, he does not really have any worries at all.  He is not significantly distressed or impaired, so far as his social and occupational and other areas of functioning are concerned.  He worked at the same job for 25 years.  The job eventually got to him a bit and he became sick of it and found that stressful.  As for his social functioning, he apparently says a few things that embarrass his wife from time to time, but that does not cause him any distress.

12.     The Tribunal takes the view that Dr. Carter took the words from the relevant Statement of Principles (SOP) for generalised anxiety disorder and applied them to Mr. McMillan without thinking about whether they applied to him or not.  The Tribunal is concerned that the items listed by Dr. Carter, beyond his being irritable, short-tempered and argumentative, said by her to be symptoms suffered by Mr. McMillan, are not suffered by him at all.

13.     Dr. Carter’s report is also deficient in one other important aspect.  Mr. McMillan’s reason for retiring was that he could not face driving semi-trailers any longer after doing it for 25 years.  Dr. Carter spent no time at all analysing or assessing that aspect of Mr. McMillan’s history.

14.     The Tribunal was not at all impressed with Dr. Carter’s report, nor with her oral evidence.

15.     There is also the question as to when Mr. McMillan developed a generalised anxiety disorder (if he really has such a disorder).  When, in the words of the Statement of Principles, did he have or suffer or experience the clinical onset of an anxiety disorder?

16.     After his service in Vietnam he served for a further five months in the Australian Navy and then for a further three years in the New Zealand Navy.  He then worked for 30 years in civilian employment – 25 years of it as a truck driver.  It was not until about 1990 that his wife suggested he get some medical assistance and it was not until 1997 that he actually saw a psychiatrist.

17.     The relevant Statement of Principles requires that for generalised anxiety disorder to be war-caused, the factors raised connecting anxiety disorder with the circumstances of the person’s relevant service must as a minimum be (in this case)

·     Experiencing a severe psychosocial stressor within two years immediately before the clinical onset of anxiety disorder.

18.     The Tribunal does not accept that there is any satisfactory evidence that Mr. McMillan had a clinical onset of generalised anxiety disorder in 1969 or 1970.  The earliest possible date on the evidence is 1990, but more probably 1997.  The clinical onset came more than 20 years after his service in Vietnam.

19.     As for the claimed so-called severe psychosocial stressors, they might possibly, but not likely, have been severe psychosocial stressors for a new 17 year old or 18 year old taking his first trip.  However, the Tribunal does not accept that a person who had by that stage served for seven or eight years in the Navy, had extensive experience at sea, had travelled widely to other countries and had risen to the rank of petty officer, could be said to have experienced severe psychosocial stressors when he heard a propaganda broadcast, heard a scare charge go off or when he passed through a mess area that contained soldiers who were returning home.  The Tribunal does not accept that those claimed stressors amounted to “severe psycho-social stressors” in the case of Mr. McMillan.

20.     There is no reasonable hypothesis linking Mr. McMillan’s anxiety disorder with his service in Vietnam.

21.     The decision under review is affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller and Mr I R Way, Member.

Signed:         .......................................................................................
           B. Hitchcock, Secretary

Date/s of Hearing  4 August 2003
Date of Decision  4 August 2003
Written reasons for decision     28 August 2003
Counsel for the Applicant         Mr Clutterbuck
Solicitor for the Applicant          Streeting Haney
Respondent  Mr. R. Morison, departmental advocate