Potts and Repatriation Commission
[2003] AATA 1126
•10 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1126
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2003/4
VETERANS' APPEALS DIVISION ) Re BRUCE FREDERICK POTTS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date10 November 2003
PlaceBrisbane
Decision The Tribunal affirms the decision to reject a claim for disability pension for Bruce Frederick Potts in respect of Post Traumatic Stress Disorder, Alcohol Abuse, Hypertension and Depressive Disorder.
................SIGNED...............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS – whether post traumatic stress disorder, alcohol abuse, hypertension and depressive disorder war-caused
Veterans’ Entitlements Act 1986
REASONS FOR DECISION
Deputy President Don Muller 1. This is an application by Bruce Frederick Potts, the Applicant, to review a decision to reject a claim for disability pension in respect of claimed disabilities of Post Traumatic Stress Disorder (PTSD), Alcohol Abuse (AA), Hypertension and Depressive Disorder (DD), on the basis that they are not war-caused, nor defence-caused, within the meaning of those terms in the Veterans’ Entitlements Act 1986 (the VE Act).
2. The Applicant claims that while serving with the Royal Australian Navy, aboard the HMAS Vendetta, in the Malacca Strait on 30 November 1965, he experienced an extremely traumatic event during the boarding and subsequent detention of an Indonesian vessel (the “Mutiara”). He claims that his disabilities arise out of the traumatic events experienced by him on 30 November 1965.
3. The Applicant claims further that whilst serving on the HMAS Vampire in 1968 he had the distressing duty of rescuing crew and possessions from the USS Frank E. Evans after it had collided with the HMAS Melbourne. He claims that his abuse of alcohol increased further after this incident.
4. The following matters are not in dispute and the Tribunal finds:
(a)The Applicant, Bruce Frederick Potts, was born on 9 June 1941.
(b)The Applicant served in the Royal Australian Navy from 10 February 1964 until 1 July 1984. He reached the rank of Chief Petty Officer. He was discharged at his own request.
(c)For the purposes of consideration under the VE Act, his operational service is his service in Malaysia/Singapore/Brunei aboard HMAS Vendetta and in Vietnam waters as an escort for HMAS Sydney aboard HMAS Vendetta, HMAS Stuart and HMAS Vampire from:
5/8/65 to 18/9/65 (45 days) Malaysia
20/9/65 to 3/10/65 (16 days) Vietnam
12/10/65 to 5/1/66 (86 days) Malaysia
15/1/66 to 2/3/66 (47 days) Malaysia
25/1/68 to 5/2/68 (12 days) Vietnam
14/5/72 to 25/5/72 (11 days) Vietnam
(d)He also has eligible defence service from 7 December 1972 until 1 July 1984.
(e)On 19 December 2001, the Applicant lodged a claim for pension in respect of, inter alia, PTSD and high blood pressure.
(f)The diagnoses of PTSD, alcohol abuse, depressive disorder and hypertension were recorded. On 15 May 2002 the Repatriation Commission rejected the claim.
(g)On 28 May 2002 the Applicant lodged an application to the Veterans’ Review Board seeking a review of the Repatriation Commission’s determination in respect of the claimed conditions.
(h)On 22 November 2002, the Veterans’ Review Board affirmed the decision of the Repatriation Commission dated 15 May 2002 in respect of PTSD, alcohol abuse, depressive disorder and hypertension.
(i)On 28 January 2003 the Applicant lodged with the Administrative Appeals Tribunal an application seeking a review of the decision to reject his claims.
(j)As the Applicant has rendered operational service, subsections 120(1) and 120(3) of the VE Act, as affected by section 120A, apply in relation to the alleged connection between the claimed conditions and his operational service.
(k)There is no claim by the Applicant that there were any incidents during his eligible defence service which have any bearing on his claimed disabilities.
(l)The claimed traumatic events said by the Applicant to have occurred in relation to picking up survivors from the USS Frank E. Evans described in paragraph 3 above, occurred during a period that is not covered by the provisions of the VE Act. Consequently, any disabilities arising out of that incident do not qualify for medical treatment and disability pension under the Act.
5. The Applicant tendered a statement dated 27 March 2003. He also gave oral evidence to the Tribunal. Those parts of his statement and evidence which the Tribunal considers to be relevant to this review are:
(a)“I did not abuse alcohol before I joined the Navy. I may have had a few beers on a Saturday. I played a bit of football and had a drink at the pub afterwards. I would not binge drink either, when I did drink alcohol.”
(b)“After my enlistment on 10 February 1964, I undertook training, then served on the HMAS Anzac before joining HMAS Vendetta in 1965. By this time I was 24 years of age.”
(c)“I do not recall drinking excessively prior to my service on the HMAS Vendetta.”
(d)“There was an incident that occurred on 30 November 1965, whilst I was serving aboard HMAS Vendetta which was extremely disturbing for me. The incident occurred in the Malacca Strait during the Malaysia and Singapore conflict.
It was at night. I was an able seaman. We came alongside an Indonesian vessel and apprehended the sailors on board who were suspected militia. I was ordered to board the Indonesian vessel (the “Mutiara”) to guard suspected Indonesian soldiers. My superior officer handed me a Thomson machine gun and told me to mind the dozen or so Indonesian sailors. I was ordered to shoot to kill them if they moved. I was left on the stern of the Mutiara with the Indonesians. The Mutiara was detached from the Vendetta and motored to rendezvous with the authorities, leaving me alone on the stern of the Mutiara guarding the prisoners. There were other Vendetta boarding party personnel elsewhere on the vessel at this point charged with guarding, I recall, the engine room and the wheelhouse, however there was no one else with me.
I was left with the prisoners for a period of several hours in semi-darkness. There was a lamp which was dimming throughout the ordeal and I could see their eyes reasonably clearly as they were very close to me. There was hatred in their eyes.
I was extremely concerned at the time that I did not know whether they were soldiers, and as such the enemy, or not, and I still don’t know. My machine gun was loaded and I had been ordered to shoot if they moved. I did not know if I would be killing an innocent person. I did not know if they were going to attack me.
I had no training to do the job that I was given, and furthermore I had no training in the use of a Thomson machine gun. This caused me further anxiety at the time. I had had training previously in the use of .303 rifle and had fired one magazine of a bren gun during recruit training, however I had not been trained on the workings of the Thomson machine gun.
If they had rushed at me I had no physical room to manoeuvre as the distance between us was quite close, the size of the area they were contained in was the stern of a very small ship.
When the Vendetta returned and the ordeal was over, I remember being so thirsty that I lapped water from a tarpaulin cover to quench my throat.”
(e)“I note that in my evidence in the Veteran’s Review Board, I stated that I had at this time been trained in using an SLR and a 9 mm Browning pistol. I would like to correct that statement, as I had not been trained in these weapons prior to the incident on 30 November 1965. I note also that these weapons were not in use by the Royal Australian Navy at this time. I would like to correct my statement and say that I was trained in these after and not before the incident of 30 November 1965.”
(f)“I believe my drinking escalated after the incident involving the Mutiara. I would drink heavily and regularly every time I was at port after this. By 1966, I was at the pub at every opportunity. The drinks of choice in those times were Bacardi Rum and Coke and Nagrita Rum and Coke. My drinking sessions would be with other off duty sailors. We would drink “triple double ovies” (ovies meant over proof rum). I cannot recall an occasion when I was not on duty that I was not drinking.”
(g)“In December 1966 I was involved in a serious car accident while off duty in Melbourne. I had been drinking at the Waterloo Hotel at Ascot-Vale. I was drinking during the day when I was off duty and I believe that I was extremely intoxicated when the accident occurred and that it was in day light hours. I returned to service after several months. I continued to drink heavily”
(h)“In 1968 I was serving on the HMAS Vampire during a SEATO exercise. During the exercise, the HMAS Melbourne collided with the USS Frank E Evans. I assisted with the rescue operation and possessions of the crew of Frank E Evans. I could see body parts floating beneath me in the water and I found it extremely traumatic. I believe that I increased my drinking still further after this incident. The Evans incident affected me a lot – it had a lasting affect – it was the start of my being nervous at sea.”
(i)“I married in 1972.”
(j)“I continued to serve in the Navy on various ships. I was responsible for identifying enemy submarines and was in charge of sonar operations aboard various vessels throughout the 1970s. During this time, I continued to drink heavily and would drink several beers nightly when off duty. I would occasionally drink wine, however I was not drinking spirits so much by this stage. I was drinking at home and alone, rather than at the pub.”
(k)“I recall that my problems with anxiety and insomnia and my rashes became more of a problem during the 1970s. I also had a problem keeping up my fitness.”
(l)“I became a Petty Officer, however I found that my work required me to do a lot of socializing and I did not like this. I left the Navy on 1 July 1984.”
(m)“I recall that my blood pressure was taken at the time of my discharge. I am not aware of any written statement made by the medical officer at the time, however I recall that he said verbally something like “Gee did you run here mate”, indicating his surprise at how high my blood pressure was.”
(n)“From 1984 to 1989 I worked at the Defence Signals Directory in Melbourne. I found the politics of the job very stressful and I continued to drink several beers daily (full strength). I would start drinking immediately once I returned home at the end of a shift. I would also drink wine occasionally. I recall that during this period I was suffering anxiety. I was prescribed Rohypnol by my doctor. This had the affect of putting me to sleep after I had had a couple of bottles of beer, however I would be wide awake within about two hours.”
(o)“I requested a transfer out of Defence Signals Directory after 5 years. I was transferred to another Commonwealth Public Service position, at the Australian Taxation Office.”
(p)“I worked with the ATO for 12 years, from 1989 to 2001. During this period, I lived and worked in Melbourne, and I only moved to Darwin 5 months prior to my retirement from the ATO, in 2001. I was in the debt recovery section.” (The Applicant gave evidence that he saw a lot of incidents of which he disapproved. He said that he secretly taped a conversation he had with a supervisor but that matters were “swept under the carpet”)
(q)“I had intended to work until I turned 65, however I did not enjoy my work at the ATO and my having to participate in their work practices. I particularly didn’t like having to deal with the public and could no longer cope.”
(r)“When I left Melbourne, I did it to get away from everybody. I do not get on with my extended family and I have had no close friends. I wanted to get as far away as possible which is why I asked for a transfer to Darwin. I paid the costs of my transfer to Darwin with the Australian Taxation Office.”
(s)“I continue to drink alcohol daily. I might have six or seven heavy strength cans of beer per day and I also drink wine and scotch during the week. I occasionally also drink brandy and I enjoy relaxing to classical music and drinking brandy. My rate of alcohol consumption is not greatly different from the quantities I have drunk for the last couple of decades. I do not drink at pubs and do not have close friends. I am not an alcoholic. My consumption is not heavy every day. I am not close with anyone outside of my immediate family, and I do not enjoy socializing.”
(t)“Dr. Glenatsis, who is now my treating doctor in Darwin has me on medication for depression. The depression that I experience is not suicidal. Rather, I occasionally become unable to activate or motivate myself to do tasks that I know I should do, and these episodes may last for a couple of weeks.”
(u)“I am also on medication for hypertension, and have been since about 1984. The current medication that I am taking is called Gopten and Adalat.”
6. The Applicant was examined by a consultant psychiatrist, Dr. Robert Parker, on 27 March 2002, and again on 18 July 2002. The reports relating to the two consultations were before the Tribunal. Dr. Parker also gave oral evidence at the hearing, the main points of which were:
· At the first consultation in March 2002, the Applicant spoke at length about the incident involving the USS Frank E. Evans. He said that his psychiatric problems were precipitated by a visit in 1996 to the Sydney Maritime Museum. HMAS Vampire is an exhibit at the museum. The Applicant told Dr. Parker that he burst into tears whilst he was sitting on the forward mess deck of the Vampire. He thought about the HMAS Voyager disaster, and then later he had flashbacks about the USS Frank E. Evans incident.
· At the first consultation, Dr. Parker recorded the Mutiara incident as follows:
“Mr Potts commented that he also served with the Navy during the confrontation between Indonesia and Malaysia. He described a number of episodes during this time that he found emotionally confronting. Mr Potts stated that on one occasion he was ordered to guard a group of Indonesian soldiers who had been captured trying to infiltrate Malaysian territory. He commented that he was using a Thompson machine-gun to guard the soldiers. Mr Potts commented that an officer who displayed an intense dislike for the Indonesian soldiers ordered him to kill them if they moved. Mr Potts stated that the Indonesian soldiers were so frightened as a result of this order that they ‘pissed their pants’.. Mr Potts said that on a further occasion a number of Indonesian soldiers were captured as they travelled between islands. They were bought back to the ship and made to stand with bare feet on a hot steel deck. He stated that he felt this treatment of the Indonesians was sadistic.”
· Dr. Parker arranged for a second interview with the Applicant, upon a request by the Applicant that his condition be reviewed. The Applicant told Dr. Parker that his application had been rejected and that he wanted to expand on his experiences on 30 November 1965 (the “Mutiara” incident). He subsequently expanded on the incident during the second interview.
· The Applicant told Dr. Parker that he had an episode of intense anxiety (possibly a panic attack) in 1972, whilst serving on the HMAS Parramatta. He was evacuated from the ship and hospitalised for three weeks.
· The Applicant said that he increased his alcohol intake from 1984 to 1989 whilst he was employed by the Defence Signals Directorate, because of frustrations he was having with the organisation. He reduced his consumption of alcohol after he left the Directorate.
7. The Tribunal had the advantage of research undertaken by Captain Henry Alfred Josephs, who served in the Royal Australian Navy (RAN) from 1945 to 1982, including service in Indonesia in the 1960s. Captain Josephs took statements from Vice Admiral D.W. Leach, a former Chief of Naval Staff, who commanded the HMAS Vendetta throughout the period under review, and from Admiral M.W. Hudson, also a former Chief of Naval Staff, who was the Executive Officer (Second in Command) of HMAS Vendetta at the time. The material provided by these former members of the RAN reveals the following.
· Mr. Potts served on the HMAS Vendetta from 10 August 1965 to 19 June 1966, when he was posted ashore to HMAS Lonsdale.
· On 30 November 1965, the “Vendetta” assisted a Royal Malaysian Navy ship the KD Sri Perlis, in the arrest of the “Mutiara”.. There were also two other ships in the patrol, a RAN ship, the HMAS Curlew, and a Royal Malaysian Navy ship, KD Kinabalu.
· Admiral HUDSON said he thought VENDETTA had intercepted the vessel as a result of information received, and assumed it could be transporting Indonesian infiltrators. The vessel was intercepted at about 2100-2200 on the night in question. It was of about 200 tons displacement, and his Boarding Party consisted of about 12 personnel.
· When MUTIARA was apprehended an armed Boarding Party was placed on board, under the command of VENDETTA’s Executive Officer, Lieutenant Commander M.W. HUDSON.
· No prisoners were taken on board VENDETTA.
· Nothing suspicious or of a military nature was found in the captured vessel and no military personnel were among the crew or passengers, which included women and children.
· Initially most of the people on board were assembled in a group, and were guarded by members of the Boarding Party.
· No order was given to shoot if the captives were to become troublesome.
· Under Admiral HUDSON’s command the vessel was sailed towards a Malaysian port 5 to 10 kilometres away, probably Port Swettenham. Nothing unusual occurred during the passage, and close to the port entrance they were met by a Malaysian Police boat. On arrival the captive vessel, her crew and passengers were handed over to the Malaysian Police.
· The Malaysian Police boat later transported the Boarding Party back to VENDETTA.
· Admiral HUDSON thought the operation did not take much more than 12 hours.
· VENDETTA did not capture Indonesian soldiers at any time between August 1965 and March 1966.
HMAS MELBOURNE / USS Frank E. EVANS collision
· Mr POTTS was serving as a Leading Seaman Underwater Control (LSUC) in HMAS VAMPIRE when this collision occurred on 03 June 1969.
· Information concerning the collision was extracted from Volume II of the “Record of Proceedings of the Combined USN/RAN Board of Investigation into the Collision Between HMAS MELBOURNE and USS Frank E EVANS”, convened by COMSEVENTHFLT and ACNB.
· The collision occurred at about 0300 on 03 June 1969 during an allied naval exercise in the South China Sea, when in the course of changing station from ahead to astern of MELBOURNE, EVANS ran under MELBOURNE’s bow and was cut in two. The forward part sank shortly afterwards, while the after part of the ship swung round and was secured to MELBOURNE’s starboard side aft. USN personnel from the after section of EVANS were taken on board MELBOURNE, either onto the Flight Deck or onto the Quarterdeck. Then, after a search confirmed that no one remained in this section of EVANS, it was let go. Seventy-four US Sailors were lost, most of them in the forward section of the ship; one body was recovered, that of a sailor from the forward section. It was picked up by one of MELBOURNE’s boats.
· HMAS VAMPIRE was a participant in the South China Sea exercise but was not in close proximity when the collision occurred. A copy of her ROP for June 1969 records that she received news of the collision at 0320, the exercise was terminated at 0325 and she arrived on the scene at 0500. She lowered two boats to assist in searching for survivors and took charge of the area search, which continued until 1900 when it was abandoned.”
8. The Applicant’s medical records (folio 72 of the T documents) indicate that the Applicant did not have a panic attack, in the psychiatric sense, when he was on the HMAS Paramatta. He experienced “realistic concern” when he noticed signs that he may have an infection, unrelated to Navy service.
9. The material placed before the Tribunal points to the following hypothesis to link the Applicant’s service with his disabilities. The incident on the “Mutiara” was such a severe stressor that it caused the Applicant to drink alcohol to excess, suffer from PTSD and suffer from DD. The excessive alcohol intake has caused hypertension.
10. The applicable Statements of Principles and the relevant parts thereof are:
Post Traumatic Stress Disorder: No. 3 of 1999 as amended by No. 54 of 1999.
2(b)For the purposes of this Statement of Principles “post traumatic stress disorder” means a psychiatric condition meeting the following description (derived from DSM-IV):
(A) the person has been exposed to a traumatic event in which:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person’s response involved intense fear, helplessness, or horror;
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder;
Other definitions
8. For the purposes of this Statement of Principles:
“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.”
Alcohol Abuse: No. 76 of 1998
“alcohol abuse” means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.
The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows
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
(2) recurrent alcohol use in situations in which it is physically hazardous
(3) recurrent alcohol-related legal problems
(4)continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol
B. The symptoms have never met the criteria for alcohol dependence.
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol abuse with the circumstances of a person’s relevant service are:
…
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol abuse;
Other definitions
8. For the purposes of this Statement of Principles:
“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 other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
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;
Depressive Disorder: No. 58 of 1998
“Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder with the circumstances of a person’s relevant service are:
….
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder.
Other definitions
8. For the purposes of this Statement of Principles:
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
Hypertension: No. 31 of 2001
“Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension with the circumstances of a person’s relevant service are:
…
(b)suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the clinical onset of hypertension”
Alcohol Abuse and Hypertension
11. The Tribunal finds that the Applicant does not suffer from alcohol abuse. He may drink more than he or his wife believe that he should, but essentially he drinks to relax at the end of the day. He satisfies none of the diagnostic criteria for alcohol abuse contained in the SoP for Alcohol Abuse.
12. Consequently, the Tribunal also finds that the Applicant’s hypertension is not due to war-caused alcohol abuse, and is, therefore, not war-caused.
Post Traumatic Stress Disorder and Depressive Disorder
13. The Tribunal accepts that the Applicant has some psychiatric problems arising from his service in the Navy. The Tribunal accepts the evidence of Dr. Parker that the Applicant told him that his problems were triggered by a visit to the Maritime Museum when he sat on the deck of the Vampire. The Tribunal finds that the traumatic events associated with the Evans have had a very significant impact on the Applicant’s psychiatric health.
14. The Tribunal accepts the statements of Admiral Hudson and Vice Admiral Leach, produced through Captain Josephs’ report, that the Mutiara incident contained no element of danger to the crew of the Vendetta. Their versions are corroborated by the fact that when the Applicant had his first interview with Dr. Parker, he dwelled at length on the Evans incident, but did not go into detail about the Mutiara incident.
15. The Tribunal finds that the Applicant’s later versions of the Mutiara incident contained gross exaggerations about the extent of the danger he faced, and of the effect that the evening had on him.
16. The Tribunal is satisfied beyond reasonable doubt that the Mutiara incident did not involve anything like a threat of death or serious injury, nor a threat to the Applicant’s personal integrity, nor was it such an event that would have evoked feelings of substantial distress, intense fear, helplessness or horror in the Applicant.
17. The relevant SoP has not been satisfied for PTSD nor for DD. Therefore, the hypotheses raised connecting PTSD and DD with the circumstances of the Applicant’s service are not reasonable.
18. The Tribunal affirms the decision to reject claims for disability pension in relation to post traumatic stress disorder, depressive disorder, alcohol abuse and hypertension.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .......................................................................................
C. O’Donovan, AssociateDate/s of Hearing 28 May 2003
Date of Decision 10 November 2003
Solicitor for the Applicant Pipers
Respondent Mr. G. Doube, departmental advocate
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