Phillips and Repatriation Commission
[2008] AATA 466
•5 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 466
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1589
VETERANS' AFFAIRS DIVISION ) Re MICHAEL PHILLIPS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly
Dr MEC Thorpe, MemberDate5 June 2008
PlaceSydney
Decision The decision under review is set aside and the decision substituted that Mr Phillips does not suffer from an anxiety disorder, post traumatic stress disorder or alcohol abuse or dependence. ...................[sgd]..................
Presiding Member
Senior Member, Mrs Josephine Kelly
CATCHWORDS
VETERANS’ AFFAIRS – war pension - naval service - claimed conditions - alcohol dependence or abuse – anxiety disorder – operational service in Vietnam – evidence exaggerated and unreliable - reviewable decision set aside – decision substituted does not suffer from claimed conditions
Veterans’ Entitlements Act 1986, s 120, 120A
Repatriation Commission v Cooke (1998) 90 FCR 307
Benjamin v Repatriation Commission (2001) 34 AAR 270
REASONS FOR DECISION
5 June 2008 Senior Member, Mrs Josephine Kelly
Dr MEC Thorpe, Member1. Mr Phillips served in the Royal Australian Navy (RAN) from 23 September 1967 until 31 December 1973. He seeks the review of the decision of the Veterans' Review Board (VRB) dated 10 April 2006 to vary a decision dated 8 May 2003 by changing the diagnosis of post traumatic stress disorder (PTSD) to that of anxiety disorder and affirming the decision that anxiety disorder is not related to the veteran's war-service.
THE ISSUES
2. Before us, the case for Mr Phillips was that he had war-caused clinical worsening of a pre-existing anxiety disorder and war-caused alcohol dependence or abuse. The relevant period of eligible and operational service under the Veterans' Entitlements Act 1986 (the Act) was 14 September 1970 and 8 April 1971. It was in waters near Vietnam.
BACKGROUND
3. Mr Phillips claimed for post traumatic stress disorder/anxiety and irritable bowel syndrome in August 1996. In that application he wrote that he had been a shop owner from 1985 to 1996 and had "walked away from business due to stress and financial ruin". He apparently consulted two psychiatrists, Dr Pohlen, and later Dr Thomson, in relation to this claim. It was refused. An application for review by the VRB was lodged on 9 October 1997 but it was eventually dismissed in about March 2000, when Mr Phillips did not respond to a request for a statement that he was ready to proceed with a hearing.
4. Mr Phillips lodged the next claim in August 2001. He claimed alcohol dependence and anxiety disorder. It was refused.
5. He lodged the claim the subject of these proceedings in January 2003. The claim was for post traumatic stress disorder (PTSD) and solar skin damage. Mr G Morris was Mr Phillips's advocate at the VRB. At that time Mr Phillips told the VRB that he was not currently seeing a psychiatrist and had not seen one for 4-5 years.
THE CASE FOR MR PHILLIPS
6. Mr Winship, who appeared for Mr Phillips, relied principally on the evidence of Dr MacLean, psychiatrist, who saw Mr Phillips in 2005. He diagnosed pre-existing anxiety disorder aggravated by service, and alcohol dependence. Mr Winship also relied upon the report of Dr Robinson, psychiatrist, who made a diagnosis of alcohol dependence.
7. Mr Winship argued that the evidence was that Mr Phillips did not drink alcohol at all until he enlisted in the RAN, and that on his return from operational service he was drinking excessive amounts of alcohol - up to 25 schooners of beer a day. He further argued that the evidence established that Mr Phillips broke down emotionally during the first few months of his basic training and went absent without leave, and was found in a drain beneath a bridge, soaked and weeping. He was returned to base, where his punishment was marching up and down a 22 yard strip in the middle of a football field from dusk until dawn. This incident was the beginning of Mr Phillips' anxiety disorder.
8. Mr Winship argued that there were two incidents during Mr Phillips' operational service which were severe psychological stressors, which aggravated his anxiety disorder. One occurred when he was working in the operations room of HMAS Perth as a radio operator. An American ship shelled HMAS Perth in error for about 20 minutes until a message was conveyed identifying that ship. HMAS Perth was not hit but had to take evasive action. Mr Phillips was in fear of his life.
9. The second incident was when a fishing boat was sighted, trying to seek the attention of HMAS Perth. Mr Phillips was one of the boarding party from HMAS Perth which boarded the boat and stripped and searched several people, and took seven Viet Cong prisoners to the HMAS Perth.
CONSIDERATION
10. The standard of proof when considering whether a claimed disease is war-caused, that is the connection between the disease and operational service, is that specified in ss 120(1) and (3) of the Act, as qualified by the provisions of s 120A, as this claim was made after 1 June 1994. (Repatriation Commission v Cooke (1998) 90 FCR 307).
11. When considering all other issues, the standard of proof is that specified in s 120(4) of the Act (reasonable satisfaction).
12. The first matter to address is whether Mr Phillips suffers from the claimed diseases, which must be determined to the reasonable satisfaction of the Tribunal in accordance with s 120(4): Repatriation Commission v Cooke (1998) 90 FCR 307; Benjamin v Repatriation Commission (2001) 34 AAR 270.
DIAGNOSIS
13. Diagnosis in this case depends on the history given by Mr Phillips. Five psychiatrists have seen Mr Phillips since 1997.
Dr Pohlen
14. Dr Pohlen first saw Mr Phillips in November 1996, and prepared a report. Mr Phillips told Dr Pohlen that, while on service on HMAS Perth, he had been exposed to both enemy and American fire and that the latter was traumatic. As a consequence of that exposure, Dr Pohlen diagnosed delayed onset of chronic PTSD and co-morbid sequelae, including alcohol dependence, alcohol-induced amnesia, alcohol-induced mood disturbance, alcohol-induced withdrawal phenomena, nicotine dependence and associated physiological sequelae according to the criteria in the DSM-1V. At Mr Phillips' request, Dr Pohlen was going to undertake the psychiatric management.of his PTSD and related conditions.
15. Dr Pohlen also reported on 17 February 1997. Mr Phillips had seen him on six occasions between November and 6 February 1997. Some details of his history had changed. The doctor noted that Mr Phillips had been an unemployment beneficiary since July 1996 following the collapse of his corner store business in response to the development of nearby supermarket village complex. Mr Phillips told Dr Pohlen that the AWOL incident was a response to his inability to tolerate the continual weeping of another serviceman in the bunk above his. As well as speaking about the Americans firing on HMAS Perth, and accompanying a "boatload" of Vietnamese to Manilla as a guard, Mr Phillips also recalled being on board HMAS ANZAC during a cyclone when "we were strapped down for 10 days in our bunks", when he thought many times that "we were gonners".
16. Dr Pohlen took a history of Mr Phillips' currently drinking “5 litres or 20 to 25 glasses of wine daily.” He had trialled Mr Phillips on medication but he had "become phobically resistant to further intrusive trialling of medications". His primary diagnosis was Navy service-induced adjustment-disordered reaction of mixed disturbance of emotions and conduct followed by co-morbid alcohol dependence and chronic PTSD. Dr Pohlen reported that Mr Phillips had lost jobs because of his condition and that it had resulted in family conflict and the breakdown of his marriage. He had a been living in a de facto relationship since 1990.
Dr Thomson
17. Dr Thomson saw Mr Phillips on two occasions and prepared a report dated 16 August 1997. Symptoms not previously mentioned included flashbacks, blocked emotions, avoidance of stimuli which reminded him of Vietnam, nightmares about Vietnam, memory loss, symptoms of stress such as sweating aches and pains, diarrhoea, reduced libido and very high alcohol and nicotine consumption.
18. In relation to the Department of Defence's response to a query from the Department of Veterans' Affairs that there was no record of an American attack on HMAS Perth, Dr Dr Thomson wrote:
Of course one would expect there to be no record of it, everybody knows that such blunders by 'friendly fire' are always hushed up for political purposes, and that the more senior the rank of the dummy who gives the order, the more likely the coverup.
19. Dr Thomson's diagnosis was rather curious. He did not diagnose PTSD, but said:
Even if the DVA [Department of Veterans’ Affairs] don't consider the stresses of Mr Philips' service to be of sufficient type or magnitude to fulfil the first criterion of PTSD, he certainly has generalised anxiety disorder with the accompanying psychiatric disabilities.
Dr Maclean
20. Dr MacLean saw Mr Phillips at the request of the Department of Veterans' Affairs on two occasions in July and August 2005. The history that doctor took included that Mr Phillips' drinking was not significant until he served on HMAS Perth, when he reported consuming large amounts of alcohol when on shore. Mr Phillips reported the two incidents on the HMAS Perth. The first was being fired on by the Americans, and the second being a member of a boarding party. Mr Phillips also said that he had been prescribed pills, "presumably sedatives", while in the RAN to reduce the tremors from his alcohol consumption “which was clearly excessive.”
21. Mr Phillips admitted to drinking 15-20 stubbies of beer per day and more on the weekend. He told Dr MacLean that he recognised his drinking was a problem in 1993 when he was working in a shop. Mr Phillip's relationship with his partner had broken up in 2000 after 11 years. He reported that he had never been suicidal. He had always been an anxious person, which Dr MacLean considered had been aggravated by his experiences. Dr MacLean diagnosed generalised anxiety disorder on the background of anxious personality and strong evidence of alcohol dependence, both of which were substantially service related. There was no convincing evidence of post traumatic stress disorder and he did not believe the condition had ever existed.
22. Dr MacLean prepared a supplementary report in December 2005 in which he said that the two incidents on HMAS Perth would come within the requirement of a "severe psychosocial stressor" prior to the worsening of his anxiety disorder, as stated in factor 5 (v) of the Statement of Principles Concerning Generalised Anxiety Disorder (No 2 of 2000).
Dr Robinson
23. Dr Robinson, Consultant Psychiatrist, examined Mr Phillips on 3 occasions, in March, April and May 2007 at the request of Mr Winship. Dr Robinson took a history of Mr Phillips' drinking all day, every day, and noted that he got the shakes and was very distressed if he did not drink. Mr Phillips said that there were large gaps in his memory of the day before and he estimated that he drank about 40 stubbies every day. He made 130 stubbies of his own homebrew every week. He also went to the club every day and had 15 or 16 schooners. Mr Phillips also said that he became aggressive for no reason, and got into fights, although that is what he was told by friends because he had no memory of what happened. Mr Phillips also reported sometimes getting bad memories and bad dreams about his time in Vietnam, but that they did not trouble him.
24. Mr Phillips related a history of increasing his drinking from two large cans of beer a day until he went to Vietnam. When on Rest and Recreation, (R&R) he and his friends would drink until they could not stand, which might take 15 or 20 schooners, or more. He was also buying beer rations from other sailors and was drinking 12 large cans of beer a day when not in port. He worked shifts of 4 hours on 4 hours off. During the latter shift he played cars and drank. He reported that he was "pissed" when he met his parents in Sydney on returning from Vietnam, and that during a period of R&R in Kurri Kurri, he was never sober. He ended up in shackles in hospital after trying to "glass" someone. Ever since Vietnam he has been drinking every day, whenever he can, and as much as he can fit in. In the last six months when he was in the Navy, he went to the Watsons Bay Hotel with his boss every day during work hours, and then after clocking off at 4 pm, they would go and drink somewhere else. He was having about 35 schooners of beer every day, "maybe more", "and probably some Scotch after that".
25. Mr Phillips told Dr Robinson that his punishment after going AWOL was 4 hours walking up and down. He told Dr Robinson that when his ship was attacked by a US boat he rushed up to have a look at what was happening. He could hear the whistling of shells and the boom as they exploded. The ship took evasive action. He went back to the radio room and continued to try to raise the Americans, as he was ordered to, and that it was 15-20 minutes before they could get the right frequency. He insisted the incident had happened but that it was "hushed up".
26. Mr Phillips also reported that the time they stopped a boat with Vietnamese on board, there was a worry about what might happen, but luckily nothing did. He told Dr Robinson about post-service employment history, including working as a manager for a transport company. He married in 1987 but the marriage lasted only 15 months. He told Dr Robinson that it was because of "the grog". In 1987 he bought a pie shop in Terrigal, which was a great business for about five years, but he got tired of it. He kept the back fridge full of beer and kept "topping himself up". He worked long hours, but by the end he could not be bothered cooking after about 2 pm, telling the customers to cook for themselves, and join him out the back for a beer. By 1996 he was broke, and closed the doors. He has not worked since.
27. On each occasion Dr Robinson saw him, Mr Phillips smelt of beer.
28. Dr Robinson diagnosed alcohol dependence according to DSM-IV criteria, which he related to Mr Phillips' "active service on HMAS Perth" when Mr Phillips reported that he felt "stressed" due to constant shelling from the ship as well as from risks of being in combat war zone. He did not diagnose any other psychiatric condition.
Dr Roberts
29. Dr Roberts, saw Mr Phillips on 10 July 2007 at the request of the respondent, and prepared a report dated 15 August 2007. He also gave oral evidence. Mr Phillips told Dr Roberts that he attended his RSL sub-branch once a month when he had lunch and a beer. He said that he drank most days and that he had had two stubbies before seeing Dr Roberts. His drinking pattern had been the same for 30 years. He would have three to four days off and then start drinking again. He would drink 20 beers on Sundays. He denied suffering nausea or vomiting as a consequence, but said that he felt "fuzzy" the next day. He also reported having been hospitalised for the treatment of delirium tremens, and significant lapses of memory. However, Dr Roberts found that Mr Phillips was able to give a detailed chronological history. The doctor noted that a degree of cognitive impairment would be deemed to be present on the basis of alcohol ingestion alone, however it was not clinically apparent.
30. Dr Roberts considered that Mr Phillips did not describe symptomatology that was suggestive of heightened anxiety of inappropriate degree. He found that Mr Phillips had neither anxiety disorder not post-traumatic stress disorder.
31. Dr Robert's was also of the opinion that the amount of alcohol Mr Phillips claimed to drink over more than 30 years was inconsistent with his employment history and his survival. He wrote:
I reiterate the amount of alcohol alleged to be drunk by this man is incompatible with employment and on grounds of probability [of] survival for that length of time… I note that Dr Robinson makes a diagnosis of alcohol dependence…There is no evidence to support the contention that it is anywhere near what is being claimed.
32. The history Mr Phillips gave Dr Roberts was that his drinking arose more in relation to his social experiences on R&R – lots of sex and drinking – than from stress.
33. Dr Roberts took Mr Phillips’ employment history. Relevantly, Mr Phillips was self-employed from 1985 to 1996 as the owner of a pie shop, and this is inconsistent with a level of alcohol ingestion he asserted. Mr Phillips' assertion of excessive alcohol ingestion and the history of admission for treatment of delirium tremens and description of memory lapses, suggests that at least at times alcohol ingestion has been significant but it is unlikely to have been of the severity alleged, or consistent with very substantial consumption of alcohol on a daily basis over time.
34. Dr Roberts noted that Mr Phillips reported being charged for driving under the influence in 1989 and has had no drivers licence since.
35. Dr Roberts stated that, in relation to the diagnosis of alcohol abuse or dependence which would require independent confirmation, it is Mr Phillips assertion that such originated due to his Vietnam experiences, but he did not describe such as arising as a result of stress, but more in relation to the social experiences he had there.
MR PHILLIPS’ EVIDENCE
36. Mr Phillips told us during his oral evidence that he had started drinking with his father when he was 15 years old. When he was on HMAS ANZAC he drank probably 15 schooners but over the years he has got pretty good at it. During his tour of Vietnam, he was drinking roughly 24 schooners a day. He did not know whether it was through stress, but he just stayed on it ever since. We understood Mr Phillips to say at one stage that while he was at sea on HMAS Perth, during a 24 hour period, the shifts were 4 hours on, 4 hours off, and that he would drink all day and night, "40 may be more than 50".
37. He described having had a big day the day before the hearing – drinking 31 schooners at two hotels and at home. We understood that his average intake currently was about 25 schooner of beer a day. He said that "25 is a nice round figure", that he had 20 odd bottles in the refrigerator which he would probably have "this afternoon". He gave a history of drinking during work hours when stationed at HMAS Watson and that his level of drinking continued after he left the navy. During his employment as a manager in a freight company, he had a few trips overseas. He said that he would go to lunch and "get on the grog". He was drinking 30 schooners a day. He had good support from the people he managed.
38. Mr Phillips said that he made efforts to contact people who were on the HMAS Perth without success, including placing advertisements. No material in support of this assertion was tendered. He said that the American attack had been hushed up. He also said that the enemy never fired on HMAS Perth because the ship was 3 miles out at sea and the enemy had nothing with that range. He was aware of the attack on the HMAS Hobart because one of his mates had been on board when it was hit. He said that he had gone up to have a look when the attack occurred and then went back to the operations room.
39. Mr Morris, who had represented Mr Phillips before the VRB, also gave evidence. He is currently the President of Mr Phillips' local RSL club. He gave evidence of observing Mr Phillips' behaviour over the last seven years. He said that Mr Phillips had been removed from the premises many times over the years and that recently he was suspended for 12 months. He did not know how many schooners Mr Phillips drank but said that he had consumed too much on many occasions over several years.
40. A letter from Mr Morris in June 2005 refers to the HMAS Perth 3rd Deployment Report page 93 "Hoi Chanh" and assets that I was part of that boarding party that brought the 7 Viet Cong back to the ship. The letter stated:
On reflection this could have been a very dicey situation. We did not know while approaching the fishing vessel what to expect. It could have very easily been an ambush.
We understand this to be Mr Phillips' version of events at that time.
CONCLUSION
41. We have taken into account all the evidence before us, including that of Mr Morris. We found Mr Phillips' evidence to be exaggerated and unreliable.
42. We are not persuaded that the attack on HMAS Perth occurred. There is a record of HMAS Hobart being hit by American fire, with consequent loss of life in The Official History of Australia's Involvement in Southeast Asian Conflict 1948-1975,[1] which was tendered as an exhibit at hearing. We had in evidence a facsimile dated 3 June 1997 from Mr Brett Mitchell, Assistant Naval Historical Officer of the Department of Defence, to the Department of Veterans’ Affairs. Mr Mitchell stated that there was no record in the respective monthly reports of proceedings to say that the HMAS Perth came under fire in Vietnamese waters in 1970 and 1971. No corroborative evidence to the contrary was provided in support of Mr Phillips' assertion.
[1] Jeffrey Grey, Up Top: the Royal Australian Navy and Southeast Asian conflicts, 1955-1972 (1998).
43. We are not persuaded that, if Mr Phillips took part in the boarding party on the Vietnamese fishing vessel, he was in fear of his life.
44. We are also not persuaded that Mr Phillips' alcohol intake has been as he described it over more than 30 years. We agree with Dr Roberts that the various quantities of alcohol ingestion Mr Phillips asserted are incompatible with his work history over more than 30 years, and with his continuing existence.
45. As stated at the beginning of the consideration of the evidence on diagnosis, that issue depends on whether or not Mr Phillips' evidence is accepted. As we do not accept Mr Phillips' evidence, and the various versions of his history given, we prefer the conclusions of Dr Roberts. We do not accept the diagnoses of Doctors Pohlen, Thomson, Maclean or Robinson, as they too were based on inaccurate and embellished histories provided by Mr Phillips.
46. We are not reasonably satisfied that Mr Phillips does suffer from an anxiety disorder. In support of that conclusion we note that Dr Robinson diagnosed no psychiatric condition apart from alcohol dependence.
47. Given the terms of the reviewable decision and the primary decision, we consider it is necessary to make a specific finding that we are not reasonably satisfied that Mr Phillips suffers from PTSD, which is clear from the evidence of Drs Maclean, Robinson and Roberts.
48. We are also not reasonably satisfied that Mr Phillips suffers alcohol dependence or alcohol abuse, because we do not accept his evidence about the extent of his alcohol intake in the past or at the present time, and accordingly prefer Dr Roberts' opinion on that question.
49. As Mr Phillips has been unsuccessful on the issue of diagnosis, it is unnecessary to proceed further.
DECISION
50. For the above reasons, the decision under review is set aside and the decision substituted that Mr Phillips does not suffer from an anxiety disorder, PTSD or alcohol abuse or dependence.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly and Dr MEC Thorpe, Member.Signed: ………[sgd]………..
Steven Mulipola, Associate
Date of hearing: 21 January 2008
Date of decision: 5 June 2008
Counsel for the Applicant: Mr B Winship
Representative for the Respondent: Advocacy, Department of Veterans’ Affairs
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