White and Repatriation Commission
[2003] AATA 943
•23 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 943
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/1079
VETERANS' APPEALS DIVISION ) Re PAUL HOWARD WHITE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date23 September 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..............SIGNED..........................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS’ AFFAIRS – whether generalised anxiety disorder with alcohol dependence/abuse war-caused
Veterans’ Entitlements Act 1986
REASONS FOR DECISION
Deputy President Don Muller 1. This is an application by Paul Howard White to review a decision to refuse a claim for pension for generalised anxiety disorder (GAD) with alcohol dependence/abuse (ADA), on the ground that the disabilities are not war-caused within the meaning of that term in the Veterans’ Entitlements Act 1986 (the VEA), and that any psychiatric illness suffered by the Applicant is due to a personality disorder (PD) which is not war-caused.
2. The Applicant claims that he suffers from the psychiatric illnesses of GAD with ADA due to two traumatic experiences he suffered whilst serving with the Royal Australian Navy (RAN) in South Vietnam (SVN) on 1 June 1968, namely:
(a)Acute embarrassment when he had difficulty in opening the bow door of a Landing Craft Marine (LCM) whilst it was delivering soldiers and supplies at Vung Tau; and
(b)He was startled when he heard some scare charges near the ship that he had travelled on to SVN.
3. The following matters are not in dispute and the Tribunal finds:
(a)The Applicant was born on 25 February 1951.
(b)He joined the RAN on 1 April 1967.
(c)He was discharged from the RAN on 22 May 1974.
(d)He served on the aircraft carrier HMAS Sydney from 14 May 1968 to 12 January 1969, during which time he had one day in Vung Tau Harbour on 1 June 1968 and one day in Vung Tau Harbour on 20 November 1968.
4. On 7 August 2000, the Applicant made a claim for disability pension in relation to a number of injuries/diseases, including:
(a)Personality disorder;
(b)Anxiety disorder; and
(c)Alcohol dependence/abuse.
5. In a decision dated 1 December 2000, the Repatriation Commission determined that the Applicant’s PD was not war-caused, and that there was no evidence that he suffered from either anxiety disorder or alcohol dependence or alcohol abuse.
6. On 12 November 2001, the Veterans’ Review Board affirmed the decision that PD was not war-caused, added the diagnoses of anxiety disorder with associated alcohol dependence or abuse, and determined that those conditions were not war-caused nor defence-caused.
7. In support of his claim, the Applicant provided written statements to the Tribunal dated 7 August 2000 and 3 July 2002. He also gave oral evidence to the Tribunal. He made the following points (among others).
(a)“Before arrival in Vung Tau, through Daily Orders or some other list, I discovered I was to be part of an LCM crew, and training began shortly before arrival. I was to be Bow Door man, a relatively unimportant position, primarily, my job was to release the bow door if it jammed and I was positioned portside forward near bow door. There was a lot of activity with choppers circling, taking off, landing, boat movements, personnel movements and orders being thrown around. Our LCM crew, myself included, were trying to act oblivious to all the activity and concentrating on our job. ….. We embarked a number of Army personnel, as there was very little room for them and their equipment. The landing craft was lowered before the troops scrambled aboard and their gear lowered. I remember the LCM was dropped the last metre or so, because we all tumbled over and I cursed when I banged my elbow. Fenders were thrown out and troops embarked. They were pretty casual with their rifles and I mentioned this to one of them only to be notified that they still hadn’t been issued with ammunition, after which I questioned the Leading Seaman, who had an SLR and he stated something about, it being dangerous to have so many on board with loaded weapons and that the Midshipman’s 9mm Browning was loaded. …... We got on with the job and the trip in was uneventful as far as I know because from my position I couldn’t see anything, only feel the vibrations and crafts movement, then I felt the revs drop back and a solid shudder as the LCM grounded, most of us were knocked off our feet and the soldiers slung a few jibes at the Navy’s incompetence. I figured we were OK as we were still sort of afloat, but then the bloody bow door wouldn’t drop and I became the centre of attention, fumbling I couldn’t seem to get anything right and dislodge the ratchet handle when the Leading seaman came up shoving me out of the way and managing to release it himself, the bow door lowered and the troops began to exit. I jumped down to the beach with a SLR, I think it was the Leading Seamans, pointing it in the general direction of an American serviceman who was looking at the goings on and taking photos. The troops were filing up to the tree line where I was told they were issued with ammunition and ration packs etc. When they were all gone, the order was given for us to board the LCM, then close bow door, this all went off without a hitch. The Midshipman then wacked it astern and upped the revs, but the LCM wouldn’t budge, this went on for some time till eventually he radioed for assistance and another LCM tied aft and with their help we broke free. I had to stay where I was and started to panic a bit but steadied up when we broke free. I found it very hard being unable to see what was going on around the LCM or even where we were for that matter. I guessed the two vessels had parted as we began a forward motion and I could feel and hear the water slapping against the sides and bow door, with vibrations through the hull. I began to relax, knowing we’d be alongside and that, that was one trip out of the way when suddenly, I heard an explosion and felt the concussion against the hull, I tensed, then there was another followed not long after by another. By this time I was really scared and nobody bothered to tell me what was going on. I was expecting water to come flying over the top anytime that’s how close the explosions felt, my mind raced picking up images of WW 2 landings I’d seen in movies. …
I felt that it was only a matter of time before one blew us out of the water. I didn’t count the number of explosions but reckon there were at least eight and after about the third one the LCM had lost speed which seemed to add to the fear I was feeling.. It felt a long time, but finally the explosions stopped and the LCM gained a little more speed before coming alongside. Everybody was pretty busy then tying up and after seeing the state I was in, the Leading Seaman told me that they’d dropped scare charges from the Sydney.
I couldn’t sleep below decks for a long time after and didn’t want to talk to anyone, feeling that I was an incompetent coward. I felt disgusted with myself. I became embarrassed”
(b)“I found myself ashamed. I began smoking very heavily and took every opportunity to forget my guilt by getting drunk, which ended with me fighting a lot, probably to prove myself, it also affected my onboard duties and I was constantly in trouble.”
(c)“…. The Sydney did a trip to Wellington NZ. We all knew it wouldn’t be long before she did another Vung Tau trip, so by the first day ashore in Wellington I’d made some decisions as how to get a discharge without it seeming I was a coward, so I got drunk with some mates and broke the quarterlight window of a car in a car sales yard and managed to get caught and locked up. Trouble was, after going to court I was let off with a fine, so had to think of something else, so decided the worst thing I could do was miss the ship when it sailed, which I figured would cost me time in Holdsworthy and a discharge. So on our last day it was easy for me to stay plastered, shack up with a lass who worked at the Purple Onion Strip Club and miss the ship the following morning. I watched the Sydney head out and waited for the last sight on the horizon before I reported in to the police station in drunken disarray with half my uniform missing. They locked me up till a Kiwi officer called for me and the next day they flew me out to Auckland where I was locked up overnight before being flown back to Sydney. I was at the wharf to greet the Sydney’s arrival and my expected punishment and discharge. I didn’t get the discharge, but was confined on board. For the life of me I couldn’t figure what to do next.”
(d)“My obvious panic directed me to take drastic measures and this I did by missing the ship in Darwin where I was to join it. I got well and truly drunk and shacked up in a motel room till the Yarra left, then reported to Melville, my story being I got drunk and rolled which was partly true, as my wallet, ID etc. had been flogged by the lass. I was taken to some barracks for a day or so and because they had no records of my inoculations I was re injected then given passage on a Hercules to Singapore where I joined the ship. Once again I didn’t get my Holdsworthy and discharge punishment, copping loss of leave and pay plus extra duties.”
(e)“My time at Penguin was a blur of parties, booze, sex and fights when not in Hospital. Whilst there I had heaps of time on my hands.”
(f)“The Torrens wasn’t too bad to serve on especially with the belief that it was unlikely to see active service and that before too long I’d be out of the RAN anyway. I tried to keep my nose clean and succeeded most of the time, though by this time I was a hardened drinker successfully hiding my drinking problem well. I remember very little of shipboard life other than constant routine and have very few memories of visits to different ports as I spent most of my shore time in bars, smoking, drinking and whoreing. I was discharged from Kuttabul and felt a sad but great relief at having managed to get through my RAN service and looked forward to starting my new life.”
(g)“The below are employments I’ve held since my discharge from the RAN in May 74.
1974; On arrival in South Aust. My last job was at the Elephant & Castle Hotel, Bottle-shop Attendant.
1975; Builder’s Labourer, doing window reveals suspended ceilings etc. at two different sites the other being an insulation installation.
Also began a part-time job at
1975-1976; OG Hotel, Klemsig as barman, bottle dept attendant
1976; Hilton Motel. Breakfast cook and lunch preparation chef.
1976; Suspended Ceilings NT. Working on extensions to Alice Springs Hospital.
1976; Council Xmas Collection, Building Slate & Rock Walls.
1977; Transylvanian Timbers, Orderman and general hand.
1977; Seven Hills & Toongabie RSL. Barman/Waiter/Cellarman.
The next two jobs together:
1978; Allegra Restaurant, Brisbane. Silver Service Waiter Wine/Food.
1978; Combined Insurance Comp. Of America. Sales Leader.
1978; Stanley Hotel. Barman, Bottle-shop Attendant, Cellarman.
1978; Callington Hotel. SA. Barman etc.
1979; Readymix Mobile Crushing Division. Weigh-bridge Operator, Machinery Operator.
The following jobs at the same time:
1981; Wilkes’ Sand & Gravel, Machinery Operator.
1981; Bread Run, Mon, Wed & Fri, mornings.
1981; Whyalla Swimming Pool. Pool Attendant & Life Guard.
1982; Hoffman Diving Services. Commercial Diver.
1982; Port Lincoln, Abalone Diving.
1983; Proud Mary Cruises. Engineer & Boats’ Diver.
The next two jobs were at the same time, shift work both:
1983; Murray Bridge Swimming Pool, Pool Attendant.
1983; Horwood & Bagshaw Farm Machinery, Welder.
1984; Banana Farm, General Hand, Machinery Operator, Welder.
1985; Radio 4KZ. Salesman, Area Rep & Script/Voice Overs.
1987; Painter/Cleaner & Odd Jobs. Self Employed.
1988; Photo & Framing Barn. Picture Framing etc.
1989; Live In Maintenance Worker for S Tremblay, Installation of Spa, Paving etc.
1989; Western Personnel. Part Time Santa Claus.
1990; Gold Coast Maintenance. Handyman, Cleaner.
1991-1996; Shop Proprietor. Self Employed.
At various times I have subsidised unemployed periods with part time work. Picking Fruit, Roofing Repairs and Painting, General Dive Recovery Work in between employment and during some employment. I was pretty well a work-a-holic.”
(h)“My wife and I operated a grocery/corner store in South Johnstone for 4.5 years. …. That enterprise closed on 24th February 1996. The shop and our residence were joined. After closing the business we retained the mortgage on the property. My wife and I currently reside in the house – the shop part of the residence remains closed and is presently used as part of the residence.”
(i)“Following closure of the business I went onto an ordinary pension (11th March 1996) and then transferred to a service pension in about October or November 1996.”
8. The Applicant has been treated by Dr. Di Palma, GP, since 1984. Dr. Di Palma reported as follows:
“Mr. Paul H. White is a patient of mine, I have been treating him since he first arrived in the Innisfail region in 1984.
He has asked that I relate the following from his records, as form of confirmation that his psychological problems have existed at least as long as I have been his Physician and in a probability long before.
After several visits toward the end of 1984 and at the beginning of 1985, Paul was suffering from an over-active mind unable to sleep and in a confused state. He was unable to concentrate and was drinking excessive amounts of alcohol in the belief he would alleviate his problems with oblivion. It was some years later, that I became aware of the fact he had Vietnam service or that he had even served in the Navy, as he never spoke of it.
I began treatment with ACH Inhibitors and counselled abstinence of at least a reduction in the amount of alcohol consumed whilst on treatment. He appeared to improve over the next few months.
Over the following years, he has continued to have major upsets that appear to tip the scales and I advised him to see a Psychiatrist, which he eventually did.
I am currently treating him with ACH Inhibitors for his High Blood Pressure, which has been relatively hard to control.
Mr. White continues to smoke and drink despite many attempts to cease and continues to attend Dr. Likely (Psychiatrist) every two months at his office in Townsville on my original referral.”
9. Dr. Likely first treated the Applicant on 17 April 2001. His report, dated 18 June 2001, contains the following:
“Mr White spoke spontaneously and appropriately. His mood was one of dysphoria. His affect was agitated and angry at first but calmed as the interview progressed. Thought content was pre-occupied by the sequelae of his Service together with ongoing feelings of guilt regarding the same. There were cognitive distortions consistent with anxiety. There were no abnormalities of thought form, stream or possession. He denied any perceptual disturbances. He denied any active suicidal or aggressive ideation. He appeared to be a man of average intelligence who was cognitively intact. He developed good rapport with the interviewer and had good insight into his difficulties.
In my opinion, Mr. White has been suffering from generalised anxiety disorder with associated alcohol abuse. Both disorders appear to have arisen as a result of his Service experiences in Vietnam.”
10. The Applicant was also seen by two other psychiatrists for the purpose of medico-legal reports.
Dr. Rowe reported:
“MENTAL STATE EXAMINATION:
Presentation:
Mr White was punctual for his appointment and was casually dressed. He appeared his stated age. He was a rambling historian and told me that he had only had three glasses of alcohol prior to attending this interview. There was no specific smell of alcohol on him nor did he appear to be under the influence of alcohol.
On examination he had no hallucinations or delusions and was not thought disordered. There was no evidence of anxiety or depression.
SUMMARY AND ASSESSMENT:
Mr White presents as a chronic personality disorder of inadequate type and apart from his excessive alcohol intake, he has no specific psychiatric illness as such. In my opinion he is not an alcoholic but does drink excessively, as he claims it helps him to feel more relaxed.
He appears to have no interest in working as he complains of having a back problem which would prevent him from doing any significant manual work. He appears quite content to drift on the way he has been doing over recent years. I consider his personality disorder is constitutional and has little to do with his previous war service.”
Dr. Mulholland reported:
“Mr Paul White appears to suffer from longstanding personality – psychiatric problems. The precise nature of these is difficult to elucidate however the clinical picture is consistent with the following:
· Chronic generalised anxiety disorder
· Chronic panic disorder with agoraphobia
· Chronic substance (alcohol) abuse/dependence – in current remission
· Chronic personality disorder (unspecified)
Mr Paul White relates the development of his psychiatric condition primarily as being due to the trip on the landing craft which has been briefly described by myself and is extensively described in the material. It is considered unlikely in the extreme that that particular event would cause a claimed life time of psychiatric illness. The experience as he describes it was stressful for him but is unlikely to qualify as a stressor or severe stressor as per the relevant SOP’s.”
Dr. Mulholland also gave oral evidence, during the course of which he said:
“I do not accept that a one-off incident like this could cause the psychiatric illness. A one-off does not result in years and years of psychiatric problems. It does not work that way.”
11. The material indicates an hypothesis linking the Applicant’s service in SVN with his current GAD and ADA as follows:
(a)On 1 June 1968, whilst serving on the HMAS Sydney, he was assigned the duty of releasing the bow door of an LCM during the ferrying of troops and supplies from the Sydney to shore.
(b)He suffered from acute embarrassment when he was unable to release the bow door.
(c)On the return of the LCM to the Sydney he heard explosions from scare charges. He did not know what they were when he first heard them, and they frightened him. It was only when he was on board the Sydney that he realised the scare charges were harmless.
(d)He was so ashamed of his incompetence at being unable to open the bow door and at his fear of the explosions which turned out to be harmless, that as a result of that feeling of shame he has suffered a psychiatric illness for over 30 years.
(e)Those feelings of shame and inadequacy amounted to a severe psychosocial stressor which resulted in his development of a psychiatric disorder as evidenced by his involvement in anti-social behaviour, alcohol abuse, bar brawls, irresponsible behaviour and “whoreing”.
(f)The psychiatric disorder led to alcohol abuse/dependence.
(g)His behaviour was eventually diagnosed with associated alcohol dependence or abuse.
12. The relevant Statement of Principles (SoP) for generalised anxiety disorder is No. 1 of 2000, and in particular factor 5(a)(ii) which provides:
“5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified, only
….
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder;
…
“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), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
13. The relevant SoP for alcohol dependence or alcohol abuse is No. 76 of 1998, and in particular factor 5(a) which provides:
“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;
“psychiatric disorder” means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV;”
14. The Tribunal finds that SoP No. 1 of 2000 is not satisfied because the events relied on (becoming embarrassed over his failure to clear the jammed door of a landing craft and feeling vibrations against the hull of the landing craft which he later learned were scare charges being detonated) does not meet the definition of “severe psychosocial stressor”.. Neither event comes anywhere near the examples given in the SoP such as being shot at, death of or serious injury to a close friend or a relative, assault including sexual assault, major illness or injury.”
15. In any event the diagnosis of generalised anxiety disorder did not occur until over thirty years after the events in SVN. Any suggestion in 2001 that the Applicant’s fighting, drinking and whoreing, which may have occurred within two years of the claimed stressful events in 1968, were indicators of the clinical onset of an anxiety disorder, is pure speculation.
16. The hypothesis linking the Applicant’s service in SVN with GAD is not reasonable.
17. The claim that the Applicant’s alcohol dependence/abuse is war-caused because it started due to a psychiatric illness fails because the Applicant is not suffering from a war-caused psychiatric illness.
18. The decision to reject the claim is affirmed.
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 27 February 2003
Date of Decision 23 September 2003
Counsel for the Applicant Mr. D. Honchin
Solicitor for the Applicant Purcell Taylor
Respondent Mr. J. Stoner, departmental advocate
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