Alan Hair and Repatriation Commission
[2013] AATA 190
[2013] AATA 190
Division Veterans’ Appeals Division File Number(s)
2011/4583
Re
Alan Hair
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr John Handley, Senior Member
Date 3 April 2013 Place Melbourne Decision The decision under review is affirmed.
(sgd) John Handley
Senior Member
VETERANS' AFFAIRS – Applicant served for 6 months in South Vietnam in 1970 – claim for acceptance of post-traumatic stress disorder (PTSD) – examination of a number of claimed events failed to meet Part (A) of PTSD definition in DSM-IV – whether his collection of symptoms pointed to depressive disorder – factors in Statement of Principles concerning PTSD do not exist as a minimum – decision affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986
CASES
Repatriation Commission v Bawden (2012) 206 FCR 296
Bawden v Repatriation Commission [2012] FCA 345
Re Bawden and Repatriation Commission [2011] AATA 283
McKerlie v Repatriation Commission (2010) 52 AAR 535
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Budworth (2001) 116 FCR 200Benjamin v Repatriation Commission (2001) 70 ALD 622
REASONS FOR DECISION
Mr John Handley, Senior Member
Mr Hair, the applicant in these proceedings, served in the Royal Australian Air Force (RAAF) for six years between 1965 and 1971. He was engaged in operational service for approximately six months between January and July 1970 in South Vietnam.
He claimed acceptance of the conditions of Post Traumatic Stress Disorder (PTSD) and Sleep Apnoea following refusal of those claims by the respondent and affirmation of those decisions by the Veterans’ Review Board (VRB). When this review commenced in Wangaratta on 6 August 2012 his counsel indicated that the claim for Sleep Apnoea was withdrawn.
The respondent denied the applicant suffers PTSD. On the first day of hearing it was contended that he suffered depression. On the last day, during closing submissions, the respondent maintained that concession but denied relevant factors within the Statement of Principles were satisfied. This issue will be discussed later.
The applicant presently receives pension at 100 per cent of the general rate for the accepted conditions of bilateral sensorineural hearing loss, bilateral tinnitus, chronic obstructive airways disease and insomnia. His ultimate objection, subject to acceptance of PTSD, is payment of pension at the special rate.
It was learnt during the hearing of this application that he has another application currently before the respondent for acceptance of alcohol abuse and/or alcohol dependence. That application is beyond the scope of this review.
THE HEARING
Ms Gobbo and Mr Purcell, both of counsel appeared for the applicant and respondent, respectively.
The applicant gave evidence on the first day of hearing in Wangaratta on 6 August 2012. The hearing resumed in Melbourne on 7 November 2012 and 25 February 2013. Evidence was heard from Dr Kenny and Dr van Ammers and Mr Barsley who had been engaged by Writeway Research Service.
The applicant relied on the clinical file of his general practitioner Dr Buckley who practices in Benalla but was not called whilst sitting in Wangaratta due to illness. The applicant also relied on a report written by Dr van Ammers, his treating psychiatrist (who also gave evidence on the second day of hearing) and the file of The Geelong Clinic where Dr van Ammers practices; and a medico-legal report from Dr Kaplan, a consultant psychiatrist engaged by the applicant’s solicitors.
The respondent relied on reports of Dr Kenny, who examined the applicant on a medico‑legal basis in February 2005, March 2008 and January 2012 (the latter was obtained in relation to the claim currently before the respondent seeking acceptance of the condition of alcohol abuse and/or alcohol dependence). The respondent also relied on reports of Dr White and Dr Chester, consultant psychiatrists who also assessed the applicant at the request of the respondent. Additionally, the respondent relied on the contents of two reports completed by Mr Barsley.
THE SERVICE EVENTS
The applicant relied on a number of events in service which he recorded in a statement he completed on 21 October 2011 (Exhibit A1). Most of those events and one other were recorded in a report of Dr van Ammers of 4 January 2011 found within his clinical file which was received into evidence (Exhibits A4 & A6; T26, p. 118-121).
Those events which will be individually discussed below by regard to the evidence heard and references to them within exhibited documents are as follows:
(i)attack/ambush on the Vung Tau air base (the Base);
(ii)cleaning blood from the floor of a helicopter;
(iii)death or wounding of a Vietnamese woman by shooting;
(iv)observing a human body part in a river near Vung Tau Harbour;
(v)observing a body bag being unloaded at Vung Tau;
(vi)travel to a fuel dump;
(vii)reaction to sirens on Base;
(viii)learning of previous deaths of French Forces; and
(ix)searching for hand grenades in fuel tanks.
Attack on Vung Tau Air Base
In his statement the applicant recorded that approximately 2/3 into my tour of Vietnam the Base was attacked (Exhibit A1, p. 2-3). He recorded that he heard a loud explosion one night when he was having a shower. He then heard small arms fire and was able to see tracer fire across the sky from the shower block. He immediately left the shower block, returned to his barracks, dressed and grabbed a rifle that was stored near his bed. An alarm sounded indicating that he and others should travel to a bunker where he waited until he was given the all clear. He recalled that he remained in the bunker for about half an hour. He believed at the time, despite being confused, that the perimeter of the Base had been breached and his life was under threat. He recorded that he was then terrified.
In evidence the applicant said that he felt real fear … this is serious. He also thought this could be it…. He said he had heard of previous attempts by insurgents… to get in and booby trap aircraft and thought that may have been happening on this occasion (Transcript Day 1, p.10-11).
That event has been the subject of recurring dreams on two or three occasions each fortnight. The applicant said he would also wake in an agitated state, he was sweating and his heart rate was elevated.
The applicant was aware of the contents of a report of Mr Barsley of 11 June 2012 where it was recorded that following an interview of Dr David Wilson (head of the RAAF History unit in the Department of Defence) there was no record of any alert issued at the Base during the period of the applicant’s service. It was also recorded that it was unlikely that the applicant would have ever possessed a rifle during service and only when there was a yellow or red alert would weapons and ammunition be issued. Mr Barsley also interviewed Warrant Officer Colin Payne – who served with the 1st Operational Support Unit at the Base for 12 months from April 1969 – who informed him that weapons were not issued to RAAF personnel whilst on the Base (Exhibit R3, p. 13-14).
The applicant was adamant that he was issued with an SLR which he kept close to his bed in his sleeping quarters, but was not issued with ammunition. He disagreed with the information obtained by Mr Barsley from Dr Wilson and WO Payne. He said that tracer fire was observed overhead; there had been an explosion and the Base was under attack during this event. In cross-examination, the applicant was referred to a report where Dr van Ammers recorded that At one time their base was under ambush and the military response from their own forces in error almost landed on them, causing rockets to fly closely over their base (Exhibit A4, p. 4). The applicant said this account of the event was incorrect (Transcript, p.44-45, 55).
In cross-examination the applicant said that the tracer fire occurred in response to a person or persons attempting to infiltrate the Base through the perimeter fence. That evidence is reasonably consistent with evidence that he gave to the VRB on 13 September 2011. At page 17 of the VRB Transcript (Exhibit A2), the applicant said:
...it transpired later it was an ambush that had gone wrong that the Americans were running a couple of hundred yards away. And, you know, because I thought, you know, this is pretty serious stuff.
Despite his earlier evidence, the applicant admitted in cross-examination that he did have ammunition for his rifle. He said that he had obtained one magazine of bullets from a hangar used for the 9th and 35th Squadron which housed helicopters and Caribou aircraft. He said another magazine was issued when the SLR was issued to him. The applicant denied possessing ammunition earlier in his evidence because he said he was not supposed to have had it. He was unable to explain why it was that he was permitted to possess an SLR with ammunition contrary to the operational orders of the 9th Squadron (refer paragraph 30 of the report of Mr Barsley – Exhibit R3, p.14). The applicant said that he was giving truthful evidence and he had not attempted to mislead the Tribunal or the respondent (Transcript, p.57-58, 60-62).
In concluding this part, I note that Dr Kenny on two occasions (T3, p. 3; T8, p. 28) recorded a history from the applicant of sleeping in Vietnam with a rifle beside his bed. In the first report he recorded the rifle was loaded.
Cleaning blood from the floor of a helicopter
In his statement the applicant recorded that the VRB was incorrect in indicating that he had cleaned out blood or body parts on multiple occasions from a helicopter (Exhibit A1, p. 2). However, at paragraph 27 of the VRB’s decision it is recorded that [t]he applicant said he occasionally had to clean out helicopters. The VRB transcript at page 34 and the decision at page xi of the T-documents records the applicant having to clean the helicopters. The reference in plural to helicopters suggests more than one occasion, although there is no reference to blood or bodies.
In his statement, the applicant recorded that there was one occasion only when he cleaned blood from the floor of a helicopter. He recorded that he understood that it was human blood and it had upset him.
In evidence the applicant said that he had cleaned blood which he observed under a seat of a helicopter during routine after flight servicing. He said there wasn’t a lot (of blood). He felt apprehensive and it was another reminder that this could happen at any minute (Transcript, p.11-12, 42).
In his report of 16 February 2005, Dr Kenny recorded that the applicant said that he saw bodies come back in bags and they had to hose out the helicopters (T3, p.3). In cross‑examination the applicant agreed that it was not his task to clean up blood (Transcript, p. 42). In his summary of the events confronting the applicant during service, Dr van Ammers recorded that when there had been casualties carried by helicopters it was their task to clean up the blood (T26, p.119). The applicant agreed that history is not right and he had no memory of giving it to Dr van Ammers (Transcript, p.42).
In his report, Mr Barsley recorded that Dr Wilson had informed him that it was possible that the operational conditions under which the 9th Squadron had been operating caused the applicant to have been tasked to undertake cleaning (Exhibit R3, p. 9).
Death or wounding of Vietnamese woman by shooting
In his statement the applicant recorded that he observed Vietnamese civilians on the outside of the perimeter fence exchanging currency with Australian and United States personnel. He heard a shot and saw a Vietnamese woman slump to the ground. He recorded that he had observed her holding a weapon in her hand when she was approximately 50 meters from him. He deduced that she had shot herself in the head and it was clear to me that she was either dead or mortally wounded (Exhibit A1, p. 2).
The applicant recorded that he was shocked and disturbed by that event, he believed that he had witnessed the death of a person and was concerned that the gunshot might have induced panic and lead to an outbreak of fire. He immediately fled the scene and recorded that he continues to suffer recurring nightmares about the incident.
In evidence in this review and at the VRB, the applicant said he saw her fall to the ground after he had heard a shot. He did not know whether the woman had died. He said he had seen a weapon in her hand and his immediate thought was somebody had shot her (Transcript, p. 13-14). At the VRB, he said he did not see a gun in her hand but was told later that she had shot herself (Exhibit A2, p. 28-29).
In a history taken by Dr White, he recorded that the applicant had told him a woman shot herself, committed suicide ... outside the fence, I heard the shot and saw her fall (Exhibit R5, p. 5).
Dr van Ammers recorded that the applicant witnessed a woman shooting herself with a pistol and blowing her brains out (T26, p. 119). The applicant agreed that he did not see her shoot herself and Dr van Ammers had exaggerated the history he had given him (Transcript, p.46).
Mr Barsley reported there was no mention of this incident in the 9th Squadron records. On the information given to him, it appears the incident occurred in the US sector of the Base. It would have been investigated by US military police or guards or Vietnamese police and details would not be found in Australian records (Exhibit R3, p.10).
Observing a human body part in a river near Vung Tau harbour
In his statement the applicant recorded that he was on-board a motor boat used for recreational waterskiing which was travelling on a river near the Vung Tau Harbour. He had performed some mechanical repairs on the boat and was asked to join the other occupants. He said a clear plastic bag was floating in the current and he noticed from a distance of 20 or 30 metres, and was certain, that he saw a human arm inside the bag (Exhibit A1).
In evidence the applicant said he did not tell the other occupants of the boat of his observations because [he] didn’t want them to go near it. It could have been a booby trap. He said the location of the boat on the river was not a good spot to be. He said they were unarmed on the boat, they were passing fishing villages and felt that they were sitting ducks because a lot of people were on the bank. He said he was scared and the fear factor went right up (Transcript, p. 14-15).
In cross-examination the applicant said that he did see a human arm in a plastic bag. He agreed that the river was heavily polluted with rubbish. When he was asked whether it could have been the limb of an animal, the applicant said he perceived it was a human arm. He agreed the history recorded by Dr van Ammers, namely, At times they went out on a boat and they saw bodies floating down the river which had become bloated was unreliable and inaccurate (Transcript, p.43-44).
The history taken by Dr White in his report of 29 March 2012, records that the applicant was out on a boat, I saw a body in a bag ... (Exhibit R5, p. 2). The Writeway report recorded that there was no direct evidence that the applicant had been waterskiing or had seen what he had believed to be a human arm in a plastic bag (Exhibit R3, p. 13).
The Writeway report also recorded that the 9th Squadron had a social club, it owned a speed boat and its members did waterski, on the river which was foul and heavily polluted. It records that there were episodes of hostility by locals on the river bank and on occasions persons wore flak jackets under their life vests and helmets.
Observing a body bag being unloaded at Vung Tau
In his statement the applicant recorded that shortly after he commenced service in South Vietnam, he was attending a barbeque at the Vung Tau army base. He recorded that a helicopter landed approximately 50 metres away and he observed a body bag being unloaded. He recorded that he could see that the bag was not empty and I realised that it must have contained the body of a human being (Exhibit A1, p. 2).
In evidence the applicant said that he did not see a body. He said the bag wasn’t flat and he believed that a body was inside it. He said the experience was confronting because it reinforced a belief that he then held that he was in an extremely dangerous place. He said he did not talk to anybody about his observation or about his reaction because he did not want to appear weak (Transcript, p.7).
In cross-examination the applicant said he was at a barbecue on the beach when he observed the helicopter landing. Having regard to photographs within the report of Mr Barsley and an aerial photograph of the Base, the line of vision between the applicant and the Vampire helipad located adjacent to the Base hospital would have been interrupted by a number of buildings. The applicant said the helicopter landed approximately 50-60 metres from him. He said he did not believe it landed on the Vampire pad (Transcript, p. 40-42).
Dr Kenny reported that the applicant had told him that he saw bodies coming back in bags ... (T3, p. 3 & 5).
Dr van Ammers did not record this event as one of the events which had an impact on the applicant.
Travel to fuel dump
In the applicant’s statement he recorded that he attended a fuel dump on approximately four or five occasions in total during his service in South Vietnam (Exhibit A1, p. 3). He stated that the VRB were incorrect in recording that he travelled to the fuel dump on four or five occasions per day (VRB decision at [31]). However, it would appear that the VRB was misled by a history taken from Dr van Ammers who recorded that the applicant made about 20 runs to collect fuel from the docks (T26, p.119).The Transcript records that the applicant told the VRB Members that history was incorrect (Exhibit A2, p.26).
The applicant recorded in his statement that on each occasion when travelling to the fuel dump he felt vulnerable and he felt like a sitting duck. He acknowledged that no incident actually occurred on any of these trips (Exhibit A1, p. 3).
In evidence the applicant said he travelled to the fuel dump over a distance of approximately 15 kilometres from the Base to collect jet fuel. He travelled in a single vehicle only and not in a convoy. On some occasions he was the driver and on other occasions he road shotgun. On those occasions he was armed with a pistol and a machine gun.
In cross-examination the applicant said he could not understand why Dr van Ammers recorded he had made 20 runs to collect fuel. He said he did not believe he had given that history, but conceded that maybe he did (Transcript, p. 59).
Reaction to sirens on base
In his statement the applicant recorded that sirens on the Base sounded on several occasions during my tour and on each of those occasions I was fearful (Exhibit A1, p. 3).He also recorded that there was only one exchange of fire during those episodes being the occasion where he believed that the Base was under attack.
Dr van Ammers recorded that once or twice a week the sirens would go off on red alert and they would have to dive into the bunkers fearful about what might happen (T26, p.119).
The applicant gave similar evidence during the hearing. In cross-examination however, his attention was drawn to the report of Mr Barsley who recorded there was no record of any enemy attack on the Base during his period of service and alerts where therefore, not issued (Exhibit R3, p.14). The applicant said alerts did occur because the Base did come under attack. On each occasion the alert was sounded he would dive into a bunker. He disagreed with the suggestion that his account was untenable. He also disagreed with the suggestion that his recollection was at fault (Transcript, p. 37-39).
Learning of previous deaths of French forces
The last event recorded by the applicant in his statement concerned his sense of apprehension because he had been told that some years prior to my tour, French forces had been killed in their beds in the very buildings which we were occupying (Exhibit A1, p. 3).
Dr van Ammers recorded that the applicant and others:
… lived in a building where they knew that the French Forces previously staying there had all been killed by having their throats cut by Viet Cong. All the time they were there they felt unsafe and feared that a similar fate might befall them (T26, p. 119).
Mr Barsley recorded that he found a report on the internet of a massacre at Cape St Jacques (subsequently renamed as Vung Tau) on 21 July 1952 where 20 persons were killed and 23 were wounded. That was corroborated by a report in the Straits Times newspaper (Singapore) on 24 July 1952 (Exhibit R3, p.15-17).
The applicant said that he accepted that the reference to that event was correct. He agreed that based on Mr Barsley’s research, the account given to him of French forces being killed in his building was not accurate. He accepted that the killing and wounding of persons had occurred at Coconut Beach being some distance away from where he was stationed in Vung Tau. The applicant explained that he did not intend to record that the events of 1952 occurred, as a fact, in the buildings that he and others had been occupying. He said it was a story going around (Transcript, p. 35-36).
Searching for hand grenades in fuel tanks
The applicant did not record in his statement that he was engaged in searching for hand grenades in fuel tanks. Reference to it is found in the report of Dr van Ammers who recorded at times he had to search for hand grenades in the fuel tanks of helicopters as Viet Kong(sic) were known to place grenades in that location (T26, p. 119).
The applicant said he did not give that history to Dr van Ammers (Transcript, p.47).
MEDICAL EVIDENCE
The applicant’s treating general practitioner, Dr Buckley, did not give evidence in this review. His clinical notes record that he made a diagnosis of PTSD at a consultation on 1 August 2001. He did record that the applicant consulted him on that day because he needs diagnoses filled in for application to DVA for disability allowance (Exhibit A3, p.4).
The history recorded in his notes, on that day, does not refer to any specific events during service. He recorded that the applicant:
…
has been troubled to a greater or lesser extent since Vietnam service with a complex of poor sleep, alcohol & tobacco excess, depression and temperamental volatility, which was severe in the first years after return, and is tending to surface rather more again of recent… (Exhibit A3, p.4)
If Dr Buckley did complete a medical questionnaire in the standard DVA form where an injury illness or disease is claimed to be war caused, it is not within the T-documents and was not lodged as an exhibit in this review. It is therefore, not known whether Dr Buckley recorded any events in service which gave rise to the diagnosis that he made.
The clinical notes record the applicant presenting on 5 November 2004 and the history then taken was troubled with ongoing dreams relating to service. PTSD was again diagnosed (Exhibit A3, p.8).
On 14 April 2005 Dr Buckley became aware that the applicant had consulted Dr Kenny at the request of the respondent. He recorded that the applicant had been knocked back, annoyed, appealing, wants a referral for another psychiatric opinion. He also recorded that the applicant had agreed to commence anti-depressant therapy and had accepted a referral to the community mental health service for cognitive behavioural therapy and a secondary psychiatric specialist opinion. The outcome of that referral is not known and is not evident from the clinical file.
On 29 March 2006 the notes record the applicant was referred to a counsellor in Wangaratta because of PTSD. The outcome of that referral is not known save that on 17 August 2007 Dr Buckley recorded that the applicant saw counsellor, didn't find it helpful… (Exhibit A3, p. 13)
I cannot locate within the clinical file of Dr Buckley any letter of referral or report he has written or received in relation to the PTSD as he diagnosed (except for a letter from Dr van Ammers to his colleague, Dr Chen, on 30 August 2010 following the applicant being accepted into the PTSD program in Geelong). There are a number of letters that he has written to and received from a consultant physician in Wangaratta in relation to sleep apnoea suffered by the applicant.
On 15 November 2001 the applicant attended a medico-legal consultation with Dr Chester, a psychiatrist, at the request of the respondent. He prepared a report on 3 December 2001 and stated that the applicant had said he did not suffer any major personal traumatic experiences and was not injured or wounded apart from the ruptured eardrum that required his repatriation to Australia (Exhibit R2, p. 3).
Although Dr Buckley diagnosed the applicant with PTSD 4 months earlier, Dr Chester recorded in his report of 3 December 2001 that although he:
suffers from a degree of insomnia and experiences occasional bad dreams referring to his service in Vietnam, he does not have any other significant psychiatric symptoms that would allow a diagnosis of any discrete psychiatric disorder either related to his service experience or otherwise (Exhibit R2, p. 4).
Dr Kenny first assessed the applicant on 14 February 2005 at the request of the DVA. He recorded that the applicant was “terrified” all the time he was in Vietnam but like the others you would “bung on an act.” The applicant said that he had slept with a loaded rifle beside the bed during his time in Vietnam but he could not recall any bad experiences (T3, p. 3). When he specifically questioned the applicant, he was told that he had seen bodies being returned in body bags and he had to hose out helicopters. This is the first occasion that there is any documented record by a doctor of the applicant specifically describing or disclosing events in service that he alleged contributed to his illness.
Dr Kenny concluded that the applicant did not have a psychiatric condition, prior to, during or after service. Dr Kenny stated that he got the impression that the applicant may be a somewhat grumpy and irritable sort of person and problems that he had experienced in his workplace had caused him distress (T3, p. 6).
Dr Kenny interviewed the applicant on 18 March 2008, again at the request of DVA. He then reported that the major concern of the applicant was falling asleep whilst driving during his work as an electrical contractor. Ultimately, Dr Kenny concluded that the applicant suffered insomnia which he regarded as a DSM-IV diagnosis. (DVA eventually accepted that condition as war-caused).
Dr Kenny concluded that his opinion remained unchanged since 2005, namely, that he did not consider the applicant had any psychiatric disorder related to service, other than insomnia. He again acknowledged that the applicant regarded his experiences in Vietnam as frightening. He had been so terrified that he drank alcohol excessively and slept with a rifle beside his bed.
On 24 August 2010 the applicant was referred by Dr Chen, a colleague of Dr Buckley, to The Geelong Clinic. At that date, the applicant had not yet received any specialist psychiatric treatment. All his care had been undertaken by Dr Buckley and his colleagues at the Benalla Clinic, save for a visit to a counsellor in Wangaratta and referral to a community mental health service. The outcome of those attendances are not known (refer above).
Dr Chen recorded in the clinical notes that the applicant was again making a claim for acceptance of PTSD and by reason of DVA psychiatrists not making that diagnosis it was suggested that he consult Dr van Ammers in Geelong. The person who made that suggestion is not recorded.
The file of The Geelong Clinic was received into evidence (Exhibit A6). A letter dated 1 September 2010 to the applicant, confirming his admission into a residential program is signed by Christie Arbuckle, who identifies herself as the PTSD Program Coordinator and Clinical Psychologist. A letter dated 8 September 2010 also signed by Ms Arbuckle, records that the applicant’s individual clinician for the PTSD program is Ms Cheryl Graham.
The progress notes commence on 26 August 2010. On that day Ms Arbuckle obtained a family and personal history. She also recorded a military history that the applicant was exposed to or involved in a number of events during his service of 7 months in Vietnam in 1970. So far as is relevant to this review, Ms Arbuckle has recorded:
… never been so frightened; felt life was under threat; ambush; 30 meters away in the shower;… Previous team in the building had throat cut in the night; on the edge to the whole time; drank to excess to get to sleep;… aerodrome bombed; hangers bombed; felt unprepared; slept with weapon; described trips; tanker in pairs and trips off base to refuel at Nui Dat would accompany weapons tank; hose off the blood; … described traces when at bunker; saw bodies flighting (sic) in the river; people hurt every day; felt helpless when in aircraft – often didn't have arms; picked up damaged craft high alert… (Exhibit A6)
The applicant was assessed on 26 August 2010 as being suitable for admission into the residential program. That was subsequently confirmed by DVA funding and the applicant commenced a two-day per week program over 12 consecutive weeks on 15 September 2010.
The handwritten notes of Dr van Ammers are found within the clinical file of The Geelong Clinic (Exhibit A6). In his evidence in this review he confirmed he consulted the applicant on 2 occasions, the first being 26 August 2010 (the same date the applicant was seen by Ms Arbuckle) and again on 2 August 2011. The handwritten notes bear those dates, however – and without any disrespect to Dr van Ammers – it would appear that he also consulted the applicant on 6 January 2011 because a DVA psychiatric impairment assessment form within the clinical file contains his signature and the written comments recorded throughout it resemble his handwriting. In his report, Dr van Ammers recorded that he met with the applicant briefly, on occasions to discuss medication options, during the PTSD program (Exhibit A4).
So far as can be discerned from the clinical notes of Dr van Ammers, dated 26 August, he has recorded that the applicant acknowledges does not open up; uncomfortable talking about it; would prefer to forget (Exhibit A6).
Dr van Ammers obtained a history of events in service, namely:
…rockets fired at Tower aerodrome; ambush went wrong; in shower explosion and sky full of tracer; driving fuel tanker to docks to get fuel. No escort; 2 men with rifles 20 runs. Apprehensive. Terrified; finger on trigger scary. If hit would explode; lived in building where French were before. All their throats had been cut by Viet Cong felt unsafe++; siren – red alert 1 – 2 week. Hit bunkers. Increase tension level; Ambush – too close and too real; fear and physical sickness; rockets; no death illegible next to him; out on boat. Bodies floating in river. Blown up… Casualties on the helicopters. Blood needing to be washed out (Exhibit A6).
Ms Graham prepared a report on 18 December 2010 (Exhibit A6). I cannot determine from the report the number of occasions that she consulted with the applicant. An entry in the progress notes dated 24 November 2010 records that she consulted with the applicant for a 1.1 session this week. Her report indicates that the applicant did participate in group sessions. There is a reference to individual therapy but it is not apparent whether it was with her or another person. Her notes of consultation with the applicant were not in the clinical file.
In her report, Ms Graham recorded that the applicant was involved in some quite traumatic situations which included:
… witnessing a woman “blow her brains out” with a pistol. He was also involved in an ambush “gone wrong” where he believed the base to be under attack and watched tracers in the sky… he was in a building that was previously occupied by the French who reportedly were found with their throats cut. He often had to search for grenades in the fuel tanks of the helicopters a place where grenades were often hidden by the VC (Exhibit A6).
It is apparent from the entries in the progress notes, the notes of consultation with Dr van Ammers and the report of Ms Graham that the number of service events disclosed by the applicant considerably increased during his treatment and therapy at The Geelong Clinic.
Dr van Ammers recorded eight service events in his report that he found have an impact on [the applicant’s] current symptomatology.
The first six numbered events are all found within his handwritten notes of consultation on 26 August 2010. They are also found in the handwritten notes of Ms Arbuckle, except for the event numbered 2, being the frequency of sirens. Ms Graham has an entry of events numbered 1 and 6, being the reference to the atrocities committed on French forces and the ambush. Only the events numbered 7 and 8, being the woman blowing her brains out and having to search for hand grenades in fuel tanks were recorded in the report of Ms Graham. The applicant denied that he searched for hand grenades in fuel tanks.
The notes of Ms Arbuckle and Dr van Ammers, nor his report or the report of Ms Graham have any reference to the applicant observing body bags being returned by helicopter. The report of Dr van Ammers does not refer to the events recorded by Ms Arbuckle as aerodrome bombed and hangers bombed.
In evidence, Dr van Ammers said he was the director of the PTSD program at The Geelong Clinic during the admission of the applicant. Whilst he met with the applicant on two occasions, each being for one hour, he said he coordinated clinicians within the program, he monitored the applicant's progress and he was aware of the contents of the progress notes.
Dr van Ammers said his report was written and compiled from his own notes, the notes of Ms Arbuckle, the report of Ms Graham and his discussion with clinicians engaged in the treatment program (being psychologists, therapists and psychiatric nurses), who had discussed the treatment, care and progress of persons in the PTSD program (Transcript Day 2, p. 44,53 & 63). He agreed that his report does not specifically record that it is compiled from the history that he obtained and from the notes of others (Transcript, p. 55).
In relation to the events that he did record, Dr van Ammers explained that his reference (in his notes) to bodies floating in the river blown up was intended to mean that the bodies were bloated. He said he thought this event had occurred on a number of occasions because the description of it (event number 5 on page 2 of his report) commences with the words At times they went out on a boat… (Transcript, p. 48 & 52).
The phrase within event number 7, namely blowing her brains out is recorded in italicized form. He agreed that would give the impression that it was a quote of the history given to him by the applicant. He also agreed that those words, in that form appear in the report of Ms Graham. He understood that she recorded those words because they were the words spoken by the applicant to her (Transcript, p. 56).
Dr van Ammers agreed that he did not take a history from the applicant of witnessing a woman blowing her brains out or of searching for grenades in fuel tanks. He agreed that those events would be stressful and shocking. He also agreed that information was fundamental in part, to his evaluation of the applicant and his diagnosis (Transcript, p. 56).
Dr van Ammers said his primary obligation to the applicant was to determine whether he was an appropriate candidate for admission into the PTSD program. He said he understood (and recorded in his notes, on 26 August 2010) that the applicant was intending to lodge an appeal with the VRB because his application for acceptance of PTSD had been denied. He understood he would be asked to write a report and as a consequence, he consulted the applicant and made detailed clinical notes. His intention in writing a report was to ensure that it was clinically accurate and objective and hopefully of use to the Tribunal. He said he was not an advocate for his patients.
Dr van Ammers was not aware that the applicant had consulted Dr Chester on one occasion and Dr Kenny on two occasions, nor was he aware that those persons had reported that it was their opinion that the applicant did not suffer PTSD. Additionally, he was not aware that Dr Kenny had found the applicant suffered insomnia nor had the applicant told him that he had suffered head injuries in Vietnam and was repatriated to Australia.
Dr van Ammers disputed a proposition put to him in cross-examination that he had diagnosed PTSD and had recommended treatment for it without obtaining a relevant health history. He agreed that the above events would be significant in making a psychiatric diagnosis but he was able to elicit a number of events which reassured him about the accuracy of his diagnosis, despite the absence from his history of the events numbered 7 and 8 and found within his report. He said many veterans suppress memories and information because they feel extreme discomfort which was an avoidance feature common in persons who suffer PTSD. He was not suspicious of the applicant for having suppressed or withheld discussion of those events. In his experience persons who participate in a group program and have intensive treatment either remember to stop suppressing memories or overcome shame about something to talk about. He said his responsibility is not to evaluate the authenticity of those events as described to him, rather it was to clinically observe patients. In his experience, persons who embellish events that they assert as traumatic do so with an element of bravado and observable stress is absent. He said the applicant did not present to him exhibiting that behaviour (Transcript, p.58-60 & 64).
The applicant was examined on a medico-legal basis by Dr Kaplan on behalf of his solicitors on 30 January 2012 (being 2 weeks after the third consultation with Dr Kenny). He was given a copy of the applicant’s statement (Exhibit A1), the reports of Dr Kenny found within the T-documents, the report of Dr van Ammers dated 4 January 2011 and a copy of the decision of the VRB under review.
The applicant was also examined on a medico-legal basis by Dr White, at the request of the respondent on 22 March 2012. Dr White was given copies of the T-documents (which contained the reports of Dr Kenny), relevant Statements of Principles, the transcript of the hearing before the VRB, the clinical notes of Dr Buckley and Dr van Ammers, the applicant’s statement and a copy of the report of Dr Kaplan.
Dr Kaplan and Dr White are psychiatrists and both examined the applicant after he had been discharged from The Geelong Clinic (13 months earlier in December 2010). They were both satisfied that he suffered PTSD.
Dr Kaplan listed, in his report, most of the events recorded by the applicant in his statement. He did not record that the applicant observed a helicopter landing and body bags being unloaded. Dr Kaplan obtained a history of an event described to him by the applicant of the Vietcong would fire what he believes were mortars or rockets across the airfield towards the base (Exhibit A5, p. 3). That event is not recorded by the applicant in his statement nor did he rely on it in this review.
It was Dr Kaplan’s opinion that the applicant had been traumatised by his stressful experiences during his Tour of Duty in Vietnam where he felt that his life was in jeopardy (Exhibit A5, p. 9). Additionally, it was his opinion that the applicant was affected by witnessing the suicide of a Vietnamese woman and observing a bag containing a body part in a river. The occasion where the applicant believed that the Base was under attack was probably the most frightening of his experiences (Exhibit A5, p.5).
Dr White has not listed all of the events in service described to him by the applicant. He recorded that the applicant had said that there were other traumatic experiences… (Exhibit R5, p. 2). He specifically recorded that the occasion where the applicant heard an explosion while in the shower and saw tracers in the sky caused him to be terrified …. I thought this could be where I finish up. Dr White recorded that the applicant observed a body in a bag whilst he was a passenger in a boat. He also recorded that the applicant was in barracks on the first floor but the sandbags were only up to six feet. That has not been the subject of any other reports nor a history given by the applicant. I assume that it is a reference to a concern or a fear then held by him that the barracks were not adequately protected.
Dr White concluded that the applicant did not suffer any other psychiatric condition. Dr Kaplan reported that in addition to PTSD the applicant was suffering from alcohol abuse.
CONCLUSION AND REASONS FOR DECISION
There a number of references in the exhibited documents to the applicant being frightened during his service in Vietnam – refer report of Dr Kenny (T3, p. 6); Dr Fitzgibbon (T9, p. 39); and the Notes of Ms Arbuckle (Exhibit A6).
As a fact, I am satisfied the applicant was frightened during service. However, that is a symptom, rather than a diagnosis of an injury or disease.
In Repatriation Commission v Deledio (1998) 83 FCR 82, the Full Court of the Federal Court set out a four step process of analysis to determine whether a reasonable hypothesis exists connecting service and a claimed condition. However, prior to commencing that process, the Tribunal must make a finding on the balance of probabilities, whether it is satisfied that the symptoms constitute an injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622 at [55]).
If the collection of relevant symptoms (refer Repatriation Commission v Budworth (2001) 116 FCR 200 at [19]) points to more than one illness, injury or disease, the Tribunal is obliged, even in the absence of being requested to do so, to make that finding. In the exercise of its inquisitorial responsibilities, the Tribunal is not limited to the case articulated by an applicant (refer McKerlie v Repatriation Commission (2010) AAR 535 at [32], [34], [44] and [45]; Benjamin v Repatriation Commission (2001) 70 ALD 622 at [47]).
The condition claimed by the applicant in this review was PTSD. Another or an alternative diagnosis, having regard to his symptoms, emerged during the hearing, namely depression. That condition will be discussed later.
Shortly before the final day of the hearing of this review, the Full Court of the Federal Court delivered its decision in Repatriation Commission v Bawden (2012) 206 FCR 296. The Full Court heard an appeal against a decision of a single Judge ([2012] FCA 345) who reversed a decision by the Tribunal ([2011] AATA 283). The veteran in those appeals claimed PTSD and relied on one event in service which he contended was responsible for his condition.
Ordinarily, a determination of diagnosis does not involve a finding of whether events in service did occur (that exercise is confined to the fourth step in Deledio). However, the Full Court in Bawden at [47] and [48]) established that in applications where the claimed condition is PTSD:
a) it can only be diagnosed as an illness or disease if a traumatic event occurred; and
b) a finding that a traumatic event occurred is indispensable to a PTSD diagnosis.
The definition of PTSD is found within DSM-IV. That definition is reproduced in the relevant Statement of Principles being Instrument N° 5 of 2008 which has operated throughout the assessment period in this review. A person must be exposed to a traumatic event to satisfy one of the diagnostic criteria of the PTSD definition (paragraph 3(b)(A)(i) and (ii)). Such an event will have occurred if:
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…
Exposure to an event which would meet at least one of the three elements contained within the above definition as reproduced will not alone be sufficient to satisfy the diagnosis. There must also be a response which involved intense fear, helplessness, or horror.
Senior Member Freidman in Bawden at [20] was reasonably satisfied that the veteran was not exposed to an event that could be described as traumatic and concluded that he did not suffer PTSD. Having made that finding, after a review of the evidence with respect to the claimed event, he decided there was no requirement to determine whether the condition was war-caused. The Full Court decided at [50] that the Tribunal made no error in law in concluding that PTSD could not be diagnosed where it was not satisfied that the veteran's symptoms were associated with an event claimed as traumatic.
On the basis of the Full Court decision, I will at this stage examine the circumstances of the events in service (refer paragraph 11 earlier) and then determine whether one or more of them are traumatic events within the meaning given by the DSM-IV definition. Subject to that finding, I then propose to determine whether the applicant has an alternate condition and if he does, whether it is war-caused.
The first event in service contended by the applicant was an attack or an ambush on the Base. This was an event where the applicant recorded having heard a loud explosion, small arms fire and alarms. It was an event where he became armed, occupied a bunker and observed tracer fire overhead.
I would have thought that an event having all these features and characteristics would have been recorded in military records. Mr Barsley recorded in his report that the head of the RAAF history unit, Dr Wilson, found no record of such an event. Additionally, it was reported that there was no record of any enemy attack on the Base between 15 October 1969 and 24 November 1970 being the period of the applicant’s service.
I think it is inconceivable that there would not have been a report or a record of such an event as described by the applicant. This event, as described by the applicant, involved him and others taking shelter in a bunker. Any event involving multiple persons, I think adds strength to the proposition that a report would have been made. My experience in having heard many applications issued by veterans also satisfies me that records of similar events are retained and remain available. In the circumstances, I am satisfied and find as a fact that the event as described by the applicant did not occur.
The applicant relied on an event where he cleaned blood from the floor of a helicopter. In his statement he said that experience upset him. In evidence he said he observed blood under the seat of a helicopter and there wasn't a lot (of blood). Dr Kenny recorded that the applicant was required to hose (blood) out the helicopters. Dr van Ammers said the applicant's task was to clean up the blood. The applicant agreed that history as recorded by Dr van Ammers was incorrect.
Dr Wilson reported that it was possible that the applicant could have been asked to undertake the cleaning. I am satisfied and find as a fact that the applicant did, on one occasion, clean blood from the floor of a helicopter. I am satisfied that experience would have been upsetting, as he described. I am also satisfied, on the basis of the applicant's evidence, that there was not a lot of blood. Certainly it was of a quantity far less than needing to be a hosed away as described by Dr Kenny which I am satisfied was also incorrect. However, I am not satisfied that this was a traumatic event as defined nor did it produce a response of intense fear, helplessness or horror.
The applicant relied on an event where he understood that a Vietnamese woman had been shot and killed outside the perimeter fence of the Base.
In his statement he said that he heard a shot, he saw the woman slump to the ground and he observed that she was holding a weapon. I do not know why the applicant deduced that she had shot herself in the head (Exhibit A1, p. 2). In his evidence to the VRB, the applicant said his immediate thought was somebody had shot her but was told later that she had shot herself. Dr White obtained a history of the deceased having committed suicide and Dr van Ammers recorded that the applicant had observed the woman shoot herself with a pistol and (adopted a history taken by Ms Graham) that the applicant saw her blow her brains out. In his statement, he said that he observed this event from a distance of about 50 metres. However, in evidence he said he was about 10 metres away from the event and that his rifle was 50 metres away in a locker beside his bed.
There are inconsistencies in the applicant’s recollection of the event. However, that is to be expected in relation to an event which occurred over 40 years ago.
I am satisfied that an event occurred where a Vietnamese civilian woman was shot and slumped to the ground. I do not know whether she was shot by another person or whether she committed suicide. I do not know, and I suspect the applicant does not know whether she was shot in the head. The reference to this event in the report of Dr van Ammers is very unsatisfactory, especially when the relevant description was attributed to Ms Graham, who was not called.
I am satisfied that the woman was either seriously wounded or dead. I am also satisfied that the applicant reacted in fear that there may have been panic amongst others civilians surrounding the woman or that there may have been other shots fired. I accept also that he fled the scene.
Having made those findings, it follows that the applicant would satisfy the first part of the relevant definition because he did experience or witness or was confronted with actual or threatened death or serious injury. He recorded in his statement that he was shocked and disturbed by that event and in evidence said that there have been occasions when he has endured nightmares. However, when asked when he first started to think about that event he said when I got home (Transcript Day 1, p. 13). I cannot find, on this evidence, that his response involved intense fear, helplessness or horror.
The applicant described an occasion when he was in a boat on a river, near Vung Tau harbour for recreational purposes, intending to waterski. He recorded that he observed a human body part in a plastic bag floating on the water. He denied the history recorded by Dr White and Dr van Ammers that he saw bodies or a body in a bag on this occasion.
Mr Barsley said there was no report of the applicant waterskiing or observing a human body part. He did record that the 9th Squadron had a social club which did own a speedboat and which its members used for waterskiing. It was also recorded that the river was heavily polluted.
I am satisfied and find as a fact that the applicant was in a boat on a river intending to waterski as he described. I am also satisfied that he saw an object which he believed was a human body part. Even if that occasion amounted to him confronting an event involving serious injury or a threat to the physical integrity of others (therefore, satisfying the first part of the definition), I cannot be satisfied that his response to that observation involved intense fear, helplessness or horror. I am satisfied that his recollection of that event was of fear that the objects polluting the river may have been a booby trap and he was at risk from civilians occupying the river bank. That fear appears to have been well founded because Mr Barsley recorded that there were occasions when other members of the 9th Squadron wore flak jackets under their life vests when using the boat or when waterskiing. It follows that the applicant’s recollection of that occasion was more in the nature of a response to his immediate environment rather than to the observation of what he perceived to be a human body part, neither of which satisfies the relevant parts of the PTSD definition.
On another occasion the applicant said he observed a helicopter landing and a body bag being unloaded from it. He said the bag was not empty and he believed that a body must have been in it. He said he made that observation from a position on the beach when he was attending a barbecue. He said the helicopter landed about 50 or 60 metres away from him, in a clear area, which was not on base, but it was near the hospital (Transcript Day 1, p. 41).
The reports prepared by Mr Barsley indicate that the vampire helicopter pad was adjacent to the field hospital (Exhibits R3 and R4). A photograph at page 8 of the first report depicts persons or bodies being unloaded from a helicopter and an aerial photograph of the Base at page 7 depicts the vampire pad adjacent to a covered walkway which leads into the field hospital. A photograph on page 2 of the second report shows the beach area and buildings onshore.
On the basis of the photographs and contents of the reports of Mr Barsley, I am satisfied that from the position occupied by the applicant on the beach, he would not have been able to see the vampire pad because of intervening buildings. I cannot see, from any of the photographs or maps found within Mr Barsley’s reports, an area other than the vampire pad where a helicopter would have landed nor can I discern any reason why a helicopter which did land and which unloaded a body bag, would do so other than at a designated landing pad adjacent to a hospital. There is evidence of the field hospital being located adjacent to the helicopter landing pad and there is no evidence of any other hospital on base. I am not satisfied the applicant made this observation.
The applicant said he travelled on 4 or 5 occasions to a fuel dump, over a distance of about 15 km, to collect jet fuel. (He said the history recorded by Dr van Ammers of him having made about 20 trips to collect fuel was incorrect). He said he either travelled as shot gun carrying a rifle and a pistol and on other occasions he was the driver. He travelled in a single vehicle and not in convoy. He said whilst he felt like a sitting duck and vulnerable, no incident occurred during any of these trips. I am satisfied that the applicant did make 4 or 5 trips to a fuel dump as he described. I am also satisfied that none of those occasions or all of them in combination constitute an event that satisfies the relevant definition.
In his statement, the applicant said that the sirens on the Base sounded on several occasions during his tour. He acknowledged that the only occasion when there was an exchange of fire following the sounding of a siren was the occasion referred to earlier where he thought the Base was under attack.
The report completed by Dr van Ammers contains a history taken from the applicant of the sirens on the Base being sounded once or twice per week and on each occasion he would have to dive into the bunkers (T26, p.119). It was suggested to the applicant in cross-examination that that history was untenable. The applicant disagreed.
As recorded earlier, the history obtained from Dr Wilson as found within the report of Mr Barsley (Exhibit R3) records that the Base was not attacked at all during the period of the applicant’s service. In those circumstances, the sirens would not have been sounded. I am satisfied that the sirens did not sound as he alleged. Accordingly, there were no events or circumstances which would cause the applicant to react, as he alleged, by diving into bunkers.
The applicant recorded in his statement that he had been told that French forces who had previously been in Vietnam had been killed whilst asleep and whilst occupying the same buildings that he and others occupied.
The first report of Mr Barsley indicated that some French forces were killed and wounded in 1952 at a different location. The applicant accepted his report.
The report of Dr van Ammers recorded that the applicant searched for hand grenades in the fuel tanks of helicopters. The applicant did not record that event in his statement. In his evidence he denied that he was required to search for hand grenades.
For all of the above reasons, I am satisfied and none of the events contended by the applicant and recorded above qualify as a traumatic event as defined within the DSM-IV definition. It follows that I cannot find that the applicant meets the diagnosis of PTSD.
The issue then remaining is whether the applicant would satisfy another diagnosis.
Dr Kenny diagnosed the applicant with chronic major depression (together with alcohol dependence and PTSD) following his review in January 2012 (Exhibit R7, p. 8). Dr White concluded that the applicant did not suffer any other psychiatric condition, having consulted with him in March 2012. Dr van Ammers said in evidence that the applicant was not clinically depressed (Transcript Day 2, p. 68-69). He last consulted with the applicant in August 2011. Dr Kaplan reported that in addition to PTSD, the applicant also suffers from alcohol abuse. He has not reported any other psychiatric diagnosis. He consulted with the applicant in January 2012, two weeks after the consultation with Dr Kenny.
The applicant currently has another application before the respondent for acceptance of the condition of alcohol abuse or alcohol dependence. There was no evidence in this review about his alcohol consumption. For the remainder of this decision, I propose to concentrate only on the condition of depressive disorder. On the basis of the opinion of Dr Kenny, I am reasonably satisfied that the applicant does suffer from that illness.
I make that finding because Dr White and Dr Kaplan saw the applicant on one occasion only. Dr van Ammers consulted with the applicant on a one-to-one basis on two occasions only, the last being in August 2011. I think his opinion, with respect, was considerably flawed because he relied in part on histories extracted from the notes of other clinicians which the applicant agreed were factually incorrect. I have a considerable degree of pessimism whether the opinion of Dr van Ammers, in the circumstances of the history adopted by him, is a reliable basis for the diagnosis he ultimately made (and then to the exclusion of any other diagnosis). Dr Kenny has seen the applicant on 3 occasions over 10 years. His report of 2012 is remarkable to the extent that he reported the changes exhibited by the applicant since he last saw him in 2005. I think his opinion is sound and it is to be preferred.
The collection of relevant symptoms (Budworth) points to the condition of depressive disorder. There was no attention given by either representative towards this as an alternative hypothesis.
Instrument N° 27 of 2008 concerning Depressive Disorder was in force throughout the assessment period. The relevant factors appear to be 6(a)(ii) and (iii) being the experiencing of a category 1A or category 1B stressor within the 5 years before the clinical onset of depressive disorder.
Applying the four steps set out in Deledio – and I need say at this stage that the following is artificial for reasons which will soon emerge – even if I were to find that there is a hypothesis, which is reasonable, the application would fail because when findings of fact are made at the fourth Deledio step, the applicant would not be able to satisfy the relevant factors.
Even if the applicant did suffer a category 1A or 1B stressor as defined – he would not have satisfied the remainder of the factor, namely, experiencing such a stressor within 5 years of the clinical onset of depressive disorder.
The T-documents record that the applicant applied for acceptance of anxiety, depression in about 2006. The VRB affirmed a primary decision to reject that application on 27 November 2006. The decision of the VRB and the materials that were before it are not found within the T-documents.
The notes of Dr Buckley record on 23 November 2006 that the applicant has a further Department of Veterans Affairs hearing next week would like a report to take with him (Exhibit A3, p. 12). Dr Buckley administered the Edinburgh Depression Scale and recorded a score of 15. If a report was prepared, a copy of it has not been retained in the clinical file. The same assessment was undertaken by Dr Buckley on 21 April 2006 and a score then recorded was 17 – depressed. It appears from the notes of Dr Buckley of 23 November 2006 that the Edinburgh Depression Scale measures post natal depression responses.
The first reference I can find in the notes Dr Buckley for the condition of depression was on 1 August 2001 (Exhibit A3, p. 4). That condition has been recorded within a summary of the history then taken. The diagnosis made was PTSD. On 22 November 2001 Dr Buckley recorded that the applicant was not feeling depressed. That consultation occurred one week after the applicant was interviewed by Dr Chester on behalf of the respondent who, apart from insomnia, did not find any other significant psychiatric symptoms that would allow a diagnosis of any discrete psychiatric disorder either related to his service experience or otherwise (Exhibit R2, p.4).
I can find nothing from any of the clinical material lodged in these proceedings pointing to a diagnosis of depression before 1 August 2001. Despite that condition being found within the history then taken by Dr Buckley, he recorded a diagnosis of PTSD. Dr Kenny found that the applicant suffered depression following his consultation in January 2012.
The clinical material before me, particularly the opinion of Dr Kenny, supports a finding that the clinical onset of the applicant’s depression was in January 2012. The clinical material within the file of Dr Buckley might point to the onset of depression in August 2001 but that diagnosis was not then made. The occasion of clinical onset is a critical finding in satisfying the factors in the relevant SoP and thereby establishing a connection between service and depression.
The category 1A or 1B stressors, as defined, must have been experienced during service and the clinical onset of depressive disorder must have been within 5 years. There was no material pointing to onset within that period. The applicant's relevant period of service expired more than 30 years before the consultation with Dr Buckley in August 2001 and 40 years before the consultation with Dr Kenny in January 2012. The applicant cannot satisfy factor 6(a)(ii) or (iii) because he did not experience a category 1A or 1B stressor within five years before the clinical onset of his depressive disorder.
For all the reasons above, I am obliged to conclude, pursuant to s 120(1) of the Veterans’ Entitlements Act 1986 that the applicant’s claim for an alternate diagnosis must fail.
DECISION
The decision under review is affirmed.
I certify that the preceding 147 (one hundred and forty-seven) paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member...............................[sgd].........................................
Associate
Dated 3 April 2013
Date(s) of hearing 6 August 2012, 7 November 2012 and 25 February 2013 Counsel for the Applicant Ms C. Gobbo Solicitors for the Applicant Williams Winter Counsel for the Respondent Mr G. Purcell Solicitors for the Respondent Advocacy Section, Department of Veterans' Affairs
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