Easton and Repatriation Commission
[2008] AATA 524
•24 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 524
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600411
VETERANS' AFFAIRS DIVISION ) Re ALBERT EASTON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr Egon Fice, Member Date24 June 2008
PlaceMelbourne
Decision The decision under review is affirmed.
...................[Sgd]......................
Egon Fice
Member
Veterans’ Affairs – War Caused Disease – Post Traumatic Stress Disorder – Diagnosis Of Post Traumatic Stress Disorder – Application of DSM IV – General Anxiety Disorder – Statement Of Principles – Alcohol Abuse – Diagnostic Criteria For Alcohol Abuse
Benjamin v Repatriation Commission 2001 34 AAR 270
Mines v Repatriation Commission [2004] FCA 1331
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Smith (1987) 15 FCR 327
Veterans’ Entitlement Act 1986 s7, 9, 9A, 13(1), 120, 120(1), 120(3), 120A(3)
REASONS FOR DECISION
24 June 2008 Mr Egon Fice, Member 1. On 22 November 2004 Mr Easton lodged a claim with the Department of Veterans’ Affairs (DVA) for a disability pension on the basis that his bilateral sensorineural loss, bilateral tinnitus, solar keratosis of the face, neck and arms, post traumatic stress disorder (PTSD) and alcohol abuse were war-caused. The Repatriation Commission (the Commission) accepted his claim for bilateral sensorineural loss, bilateral tinnitus and solar keratosis of the face, neck and arms. However, his claims for PTSD and alcohol abuse were disallowed. He was granted the disability pension at 30 percent of the general rate.
2. Dissatisfied with the decision regarding his claims for PTSD and alcohol abuse, Mr Easton sought review of the Commission’s decision by the Veterans’ Review Board (VRB). On 28 March 2006 the VRB affirmed the Commission’s decision to deny Mr Easton’s claims for PTSD and alcohol abuse on the ground that those conditions were not war-caused. Mr Easton now seeks a review of that decision.
3. The diagnosis of PTSD was disputed. Dr Christopher J Percival, a psychiatrist, diagnosed Mr Easton as suffering from PTSD. However, Dr Nigel Strauss, also a psychiatrist, while agreeing that Mr Easton suffered from a psychiatric condition, did not consider that he suffered from PTSD, but rather, a generalised anxiety disorder (GAD). There seems to be no dispute about the diagnosis of alcohol abuse. Therefore, the issues which I need to resolve include:
(a)whether Mr Easton suffers from PTSD;
(b)if Mr Easton does not suffer from PTSD, whether he suffers from GAD; and
(c)whether Mr Easton’s conditions were war-caused within the meaning of that term as it is defined in the Veterans’ Entitlements Act 1986 (VE Act).
RELEVANT BACKGROUND
4. Mr Easton left school at 14 years of age to work on the family farm. After three years he obtained employment as a labourer with the State Rivers and Water Supply Commission. Mr Easton said his upbringing was strict, particularly regarding smoking and alcohol consumption. He said he tried alcohol for the first time when he was 18 years old.
5. Mr Easton was conscripted into the Australian Army on 28 September 1966. After completing his basic training at Puckapunyal and Corps training, he was posted to 30 Terminal Squadron in Sydney. He completed a battle efficiency course at the Jungle Training Centre at Canungra and was posted to South Vietnam, arriving at Vung Tau on 13 November 1967. His duties on arrival were as a Checker ECN 22 at Vung Tau. Mr Easton qualified as a warehouse equipment operator on 22 December 1967; and on 25 March 1968 he was posted as a Stevedore ECN 812 within Detachment 30 Terminal Squadron.
6. Mr Easton came back to Australia for R&R between 28 April 1968 and 5 May 1968, returning to Saigon on 6 August 1968 to complete his tour of duty in South Vietnam. Mr Easton was discharged from the Army on 27 September 1968, having completed his period of national service.
7. Mr Easton gave evidence of a number of significant events which he said occurred during his tour in Vietnam and which are causally connected with his claimed conditions.
event number one
8. As a member of Detachment 30 Terminal Squadron, he was required to assist in setting up stretchers and the loading of wounded soldiers onto C130 Hercules (C130) Medivac flights from Vung Tau to Australia.
event number two
9. He was required, as a member of Detachment 30 Terminal Squadron, to load coffins onto C130 aircraft for return to Australia. On one such occasion, he observed the name of a soldier he knew, John Doherty, on a coffin. Mr Easton said he had befriended Mr Doherty as they were in the same recruit training platoon at Puckapunyal.
event number three
10. The field hospital at Vung Tau was reasonably close to where his unit was billeted. Mr Easton said on occasions members of Detachment 30 Terminal Squadron were asked to assist with the wounded brought in by helicopter. He observed wounded soldiers with blood-soaked bandages.
event number four
11. He was regularly called on to ride shotgun on truck convoys between Vung Tau and Nui Dat, Baria, Saigon etc. Mr Easton said because he was standing up through the top of the truck with his head and shoulders exposed, he heard gunfire on a number of occasions.
event number five
12. During the Tet Offensive in 1968, he was deployed to Saigon to unload aircraft. Mr Easton said he had to stay in Saigon where he was billeted at the bachelor enlisted men’s quarters (BQ), which was called Hotel Canberra. He said he didn’t carry his weapon with him when in Saigon and he saw damage and destruction to buildings which occurred during the night, on his way to Tan Son Nhut airport the following morning.
event number six
13. On occasions he would go to Saigon with his unit to help unload aircraft and on a few occasions he heard gunfire outside the Hotel Canberra. He was unarmed, although the hotel was guarded by armed Australian soldiers.
LEGISLATIVE SCHEME
14. Section 9 of the VE Act provides that, subject to s 9A (which does not apply in this case):
… an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …
15.Section 13(1) of the VE Act provides that where:
(a) …
(b)a veteran is incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)…
(d)in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
16. There is no issue in this case about Mr Easton satisfying the definition of veteran under s 5C of the VE Act, having rendered eligible war service, which is defined in s 7 to include operational service. Mr Easton’s service in Vietnam was clearly operational service.
17. Section 120 of the VE Act sets out the standard of proof which must be established to enable a determination to be made that the injury, disease or death of the veteran was war-caused. Section 120(1) of the VE Act requires a finding, where operational service was rendered by the veteran, that the injury, death or disease of the veteran was war-caused unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Given Mr Easton rendered operation service, s 120(1) applies to his claim for the purposes of establishing the causal connection between his war-service and his PTSD/GAD and alcohol abuse.
18. Section 120(3) of VE Act, which must be considered when applying s 120(1), requires the Commission to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that an injury, disease or death was war-caused if, after considering the material before it, the Commission is of the opinion that the material does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the veteran. A hypothesis is a proposition made as a basis for reasoning without the assumption of its truth. To determine whether the hypothesis or proposition is reasonable, where claims are made on or after 1 June 1994, s 120A of VE Act must be applied. In particular, s 120A(3) provides that, for the purposes of s 120(3), a hypothesis connecting an injury, disease or death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force a Statement of Principles (SoP) determined under s 196B(2) or (11) of VE Act, which upholds the hypothesis. Section 120A(3) does not apply in relation to a claim for incapacity resulting from injury or a disease, or death of a person where the Repatriation Medical Authority has neither determined an SoP under s 196B(2) nor declared that it does not propose to make an SoP in respect of the kind of injury, disease or death, as the case may be.
19. The method by which s 120(1), s 120(3) and s 120A(3) are to be applied was explained by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82. There Beaumont, Hill and O’Connor JJ said:
1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
DIAGNOSIS
post traumatic stress disorder (ptsd)
20. When approaching the question of diagnosis where the claim involves PTSD, the process to be undertaken is more complicated because the presence or absence of the claimed disease is dependent upon whether the person has experienced a traumatic event of the kind set out at Criterion A in the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM‑IV). As Gray J pointed out in Mines v Repatriation Commission [2004] FCA 1331 at paragraph 39:
It is only possible to know whether a person has suffered PTSD if it is known that the person has experienced a traumatic event. There are, therefore, two questions. One is whether the person is suffering from symptoms which, if a traumatic event is identified, would result in a diagnosis of PTSD. The second is whether the traumatic event occurred.
21. After examining the many cases dealing with the process of reasoning when a diagnosis is dependent upon a traumatic event occurring, Gray J concluded, at paragraph 48:
It is therefore clear that the question whether a veteran is suffering, or has suffered, a claimed injury or disease must be determined to the reasonable satisfaction of the decision-maker, ie on the balance of probabilities. That question is not to be determined by asking whether there is a reasonable hypothesis that the veteran is suffering, or has suffered, the injury or disease and asking whether the material establishes that the facts supporting that hypothesis do not exist beyond reasonable doubt. If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran’s operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD. Only if such a conclusion is reached does the reasonable hypothesis process of reasoning, outlined in the four steps referred to in Deledio, come into operation. As I have already suggested, in those circumstances, the connection between the disease and the operational service has already been determined, and the four steps in Deledio hardly need to be considered.
22. The authorities establish that where there is an issue as to whether a veteran is suffering from a claimed injury or disease, the Tribunal must decide that issue to its reasonable satisfaction, as required, by s 120(4) of the VE Act (Benjamin v Repatriation Commission (2001) 34 AAR 270 at 282; Repatriation Commission v Cooke (1998) 90 FCR 307 at 301-311; Repatriation Commission v Budworth (2001) 116 FCR 200 at 204-205 and Repatriation Commission v Hill (2002) 69 ALD 581 at 598-599). The phrase used in s 120(4) …decide the matter to its reasonable satisfaction, was comprehensively dealt with by the Full Court in Repatriation Commission v Smith (1987) 15 FCR 327 at 334-335. There, Beaumont J, with whom Northrop and Spender JJ agreed, said at 335:
Even if the Tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation. …
This means that I am required to decide the question of diagnosis on the balance of probability.
23. In support of his PTSD claim, Mr Easton relied on three reports prepared by Dr Percival dated 9 March 2005, 5 December 2005 and 16 January 2007. Dr Percival first saw Mr Easton on 15 February 2005 and, as he was unable to complete his assessment on that day, he saw him again on 9 March 2005. In his first report, Dr Percival said that:
Mr Easton presented as a basically unremarkable 58 year old man whose only signs suggestive of psychiatric disability on interview was a noticeable, but not marked, increasing tension, with a hint of tears, as he reluctantly talked of certain aspects of his service in Vietnam.
24. Dr Percival reported that Mr Easton described a pattern of disturbed sleep, with between one and two hours of initial insomnia, followed by disturbed dream- ridden sleep which ended in early morning waking on approximately three nights per week. According to Dr Percival, the dreams were about certain aspects of his experiences in Vietnam. Mr Easton said he woke from those dreams with a sweating, with my heart racing, breathing more than usual, and frightened. Mr Easton also described a pattern of intrusive thoughts, occurring daily on a two- monthly basis, which were triggered by the sight of funerals and/or coffins, and by television material concerning the war in Vietnam.
25. Dr Percival reported that after a considerable amount of evasion and reluctance, Mr Easton finally talked about that aspect of his duties involving the loading of RAAF C130 aircraft. Mr Easton told Dr Percival that on one occasion, when loading coffins on a C130 aircraft, he glanced down at one of the coffins and saw the name of a friend, John Doherty, with whom he had trained. Mr Easton said his emotional response to that discovery was shock, it was bloody awful – I just felt bloody terrible – I don’t know how else to bloody put it, I don’t talk about it. Mr Easton also said he felt helpless as he couldn’t do anything. Mr Easton said that a high percentage of casualties which he loaded onto C130 Medivac aircraft were Australian soldiers who had lost limbs as a result of mine explosions. Dr Percival did not record any of the other significant events upon which Mr Easton now relies for the purposes of this claim.
26. Dr Percival diagnosed Mr Easton as suffering from PTSD based on the diagnostic criteria set out in DSM IV. He said Criterion A was met by Mr Easton’s reaction of helplessness and horror when confronted with the reality of the death of his close friend, Mr Doherty, and when witnessing many seriously wounded Australian casualties at close quarters. He said that Criterion B was met by his recurrent, intrusive and distressing, dreams and recollections of those events together with an intense psychological distress and physiological reactivity on exposure to internal or external cues resembling or symbolising any aspects of the Criterion A event. Dr Percival added that the response was not only reported by Mr Easton, but was observable on assessment. He said Criterion C was met by Mr Easton’s efforts to avoid thoughts, feelings, conversations, activities, places, or people which aroused recollections of the trauma. He also said Criterion D was met by the constellation of persistent symptoms of increased arousal, difficulty with sleep, irritability, difficulty with concentration, hyper vigilance, and an exaggerated startle reflex. Dr Percival did not address Criterion E or F of DSM‑IV.
27. Although Dr Percival went on in his report to assess the cause of Mr Easton’s PTSD, with respect, that clearly is not his role insofar as proceedings before this Tribunal are concerned.
28. Dr Percival provided a further report dated 5 December 2005 after the rejection of Mr Easton’s PTSD claim by a claims assessor. However, again in my view, Dr Percival embarked upon an assessment of causality based only upon the veteran’s statements made to him in the course of his assessment. In my view, that does not assist in establishing the diagnosis or causality. Although it is correct to say that in making a diagnosis a psychiatrist must obtain from the person being examined the nature of the traumatic event and the person’s response to that event, that is only for the purpose of establishing whether Criterion A has been met. If, upon examination of all of the evidence which is available regarding the event as described by the veteran, the Tribunal were to find that the event did not occur, that must necessarily affect the diagnosis. This is particularly so where the veteran has only described events associated with his war service and not other events which may also meet Criterion A in DSM IV.
29. Dr Nigel Strauss, a consultant and occupational psychiatrist, examined Mr Easton on 31 August 2006. Dr Strauss prepared a report which is also dated 31 August 2006. Dr Strauss took an extensive history from Mr Easton about his time in Vietnam. Mr Easton told Dr Strauss about the incident involving the loading of coffins when he saw the nametag of John Doherty, with whom he had trained at Puckapunyal. He told Dr Strauss that this was the most significant upsetting event which occurred during his time in Vietnam. He also told Dr Strauss about assisting to load soldiers who were returning home by Medivac C130. He said many of the soldiers returning home had lost limbs because of mine incidents. Mr Easton told Dr Strauss he was billeted near the hospital and he would sometimes help to carry injured soldiers on stretchers arriving by helicopter. He recalled seeing blood soaked bandages. Mr Easton also told Dr Strauss about staying at a hotel in Saigon were he heard gunfire outside. He said he was unarmed although the hotel was guarded by soldiers. He said he felt helpless, worried and anxious. Dr Strauss asked him if there were any other incidents he could remember and he said he could not.
30. Dr Strauss reported that Mr Easton presented as a rather rigid individual, somewhat tense, with obsessional traits in his personality; but who was, nevertheless, open and polite. Mr Easton was not clinically depressed. Dr Strauss said his thinking was negative but there was no evidence of any psychosis, delusions or thought disorder. He noted that Mr Easton’s memory and concentration were good and he was orientated in time, place and person. Dr Strauss had received a report written by Dr Barker, Mr Easton’s general practitioner, in March 2006, where it was stated that Mr Easton had symptoms of phobic anxiety related to PTSD. Mr Easton ceased working because he was sleeping poorly and was on edge at work. Mr Easton told Dr Strauss he was a somewhat organised person and that some people accused him of being a perfectionist.
31. Dr Strauss was of the opinion that Mr Easton suffered from a psychiatric condition. He noted that over the years, Mr Easton did well in his employment and worked long hours, which fitted with his personality type. He also noted that Mr Easton had been a high achiever in sport as well and this confirmed his belief that he had obsessional traits in his personality. As to the events described by Mr Easton in Vietnam, Dr Strauss did not view those episodes as being severe psychosocial stressors. Nevertheless, he was of the view that they were psychosocial stressors for Mr Easton and those events had contributed to the development of his psychiatric problems over the years. Dr Strauss was not of the view that Mr Easton suffered from PTSD. He did not believe Mr Easton had been affected by any life-threatening or psychosocial stressor which would account for PTSD. However, Dr Strauss did accept that Mr Easton had a GAD which has made him tense and anxious and resulted in his difficulties with interpersonal relationships over the years. Dr Strauss was of the view that Mr Easton’s GAD began when he was in Vietnam, due to his experiences there combined with his personality type.
32. Mr Easton obtained a further report from Dr Percival following his examination by Dr Strauss. On this occasion Dr Percival was provided with Dr Strauss’ report of 31 August 2006 and also two reports provided by Mr Warren Barsley from Writeway Research Service Pty Ltd. Mr Barsley had conducted research of defence and war records regarding Mr Easton’s claims. Those reports are important because they cast considerable doubt on the claims of Mr Easton regarding the significant events which he described as having occurred in Vietnam and upon which his claim is based.
33. Mr Barsley’s research revealed that Detachment 30 Terminal Squadron was under the command of 5 Company RAASC (Royal Australian Army Service Corps). The role of the personnel of Detachment 30 Terminal Squadron included:
(i)The reception, clearance, loading and identification of stores received on charter or RAAF aircraft operating in South Vietnam and between Vietnam and Australia.
(ii)The documentation of loading/unloading of all small ships.
(iii)The documentation of loading/unloading the resupply ships from Australia.
(iv)The operation of a transit area for transhipped cargo.
(v)Provision of reports to Movement Control and receiver units.
(vi)Tracer action through Movements for discrepancies.
(vii)Receipt and clearance of MFO stores in conjunction with 11 MC Gp.
(viii)The operation of a small parcels distribution (IPEC) service intra-theatre.
34. As far as Saigon charter (Qantas B707) flights were concerned, and at times, RAAF C130 aircraft flights if Vung Tau was closed, detachments of one NCO and five other ranks were provided to conduct that work. If aircraft were to be loaded or unloaded at Saigon, the detachment travelled from Vung Tau on the morning of the arrival of the charter, and returned to Vung Tau in the afternoon of the same day. The charter aircraft was scheduled to be on the tarmac at Tan Son Nhut airport from 11.00 am to 12.30pm each Tuesday. Where C130 aircraft landed in Saigon rather than Vung Tau, the aircraft were unloaded and the pallets loaded onto trucks which were driven to Vung Tau the following day.
35. The records located by Mr Barsley note that Mr Easton was included in the manning detail under a Sergeant Mulligan as a Checker. A Checker’s duties included:
(a)checking cargo being loaded/back loaded correctly;
(b)reporting any discrepancies, damaged or pilfered cargo to the shift supervisor;
(c)providing clear, accurate, concise documentation;
(d)ensuring that loads are correctly signed for and any necessary information is passed onto the shift’s supervisor.
36. The first thing that is obvious from reviewing the tasks of Detachment 30 Terminal Squadron and the role which Checkers were required to undertake in Vietnam is that it was not within a Checker’s normal duty to assist in unloading wounded soldiers from DUSTOFF helicopters and taking them from the helipad to the hospital. Detachment 30 Terminal Squadron staff were clearly assigned to a different role. Furthermore, the information obtained by Mr Barsley and the photograph of the helipad and its location relative to the hospital, raise further doubts about whether any persons from Detachment 30 Terminal Squadron were involved in offloading wounded soldiers brought in by helicopter. The helipad was immediately adjacent to a covered walkway which lead to the hospital. Mr Barsley obtained a description of battle casualty reception by a former commanding officer of 1 AUST FD HOSP (Australian Field Hospital). In that description, the commanding officer said the hospital was advised by radio of details of incoming casualties. The hospital usually received about 30 minutes notice to assemble its stretcher parties and surgical teams. Therefore, it would be an extraordinary coincidence of timing if Detachment 30 Terminal Squadron staff were available to conduct such duties at short notice. In a report provided by Colonel Michael Naughton, the former Commanding Officer of 1 AUST FD HOSP, he said that on the arrival of a DUSTOFF helicopter, a cluster of personnel would attend, involving seven people including a medical officer; a Ward Master in charge of the stretcher party; and four stretcher bearers. The clear inference from his report is that all persons dealing with casualty reception were persons associated with the hospital. There was no suggestion that other personnel were used.
37. Furthermore, according to a document entitled Brief on Handling Battle Casualties, 1 AUST FD HOSP was well resourced to meet its primary function, which was the reception, assessment and treatment of battle casualties. Therefore, there was no requirement for hospital staff to call for assistance from neighbouring logistic units to assist with reception of battle casualties. According to the brief, only essential 8 Field Ambulance and 1 AUST FD HOSP staff were called upon to standby to receive incoming casualties. Each of those persons, for example the medic, Ward Master, Regimental Sergeant Major, stretcher party, surgeon specialist, nursing staff, anaesthetist, QM staff, the padre and Red Cross had a particular role to play. Furthermore, Colonel Naughton said the attendance or presence of non-essential 1 AUST FD HOSP personnel at the helicopter pad, including hospital staff that had no direct role in the reception and management of casualties, was actively discouraged by the RSM of 1 AUST FD HOSP.
38. Although the research conducted by Mr Barsley confirmed what Mr Easton said about his accommodation being some 200 metres or so from the helipad, and therefore he would have been able to see, at a distance, the activities surrounding the reception of battle casualties, due to the high level of activity of the medical staff and the staff unloading wounded, he would not have been able to observe any details of the battle casualties.
39. Mr Easton’s evidence was that on one occasion he was called on to assist with carrying incoming wounded soldiers at the Vung Tau helipad. He said he helped carry a wounded soldier on a stretcher to waiting medical personnel. He said it was horrific to see all the blood-soaked bandages and the pain and wounds carried by these men were still very vivid to him. Despite this statement, Mr Easton did not make mention of this event to Dr Percival when he was examined on 15 February 2005, 9 March 2005 or 5 December 2005. When this was put to Mr Easton at the VRB hearing on 28 March 2006, he said there were a lot of things which he had forgotten about and Dr Percival didn’t raise it. He said he didn’t think to mention it to him. Despite this, in his evidence-in-chief, Mr Easton said what stressed him the most in Vietnam in addition to the loading of coffins was assisting with the wounded on the chopper at the hospital. At the VRB hearing, Mr Easton said the thing uppermost in his mind was the coffin incident and not the unloading of recently wounded soldiers from the DUSTOFF helicopters. When asked at the VRB hearing how he became involved in that task, he simply said: they use to ask us to assist if …. When asked if he meant the hospital staff, Mr Easton said:
Oh, they – oh our unit I suppose. They’d just get us to, common practice, like, I only did it once but I can recall, but, yes, others in the unit done it too.
40. Mr Lionel John Betts, who was the Detachment Commander of Detachment 30 Terminal Squadron in Vietnam in 1967 and 1968, provided a statement of evidence in which he said Detachment 30 Terminal Squadron members assisted in the carrying of stretchers bearing wounded troops from the helicopters to the medical area at 1ALSG (Australian Logistics Support Group). In his evidence-in-chief he was asked whether that was a regular task. His response was: That was a task that I picked up on our reunions. Mr Betts said at one of these reunions, some of the Sappers were talking about stretcher bearers, which he was not aware of at that time, and is quite sure it did not slip his memory, but there was some talk of one of the Sappers being on an ABC film carrying one of the stretchers. On that basis, Mr Betts assumed it to be true. Mr Betts had not seen the film and he had merely heard about this incident. He confirmed he was not personally involved in carrying wounded soldiers off DUSTOFF helicopters; nor was he aware it happened at the time he was in Vietnam.
41. Mr John Hodgson also provided a statement and gave oral evidence at the hearing. In his written statement, Mr Hodgson said he served with Detachment 30 Terminal Squadron in South Vietnam between March 1967 and March 1968. In fact, Mr Barsley, after researching Mr Hodgson’s military records, said Mr Hodgson left Vietnam on 5 March 1968. Therefore, Mr Hodgson only served with Mr Easton for a period of some three and a half months. In his statement, Mr Hodgson made no mention at all about unloading wounded soldiers from DUSTOFF helicopters. In his evidence-in-chief, he was asked whether Detachment 30 Terminal Squadron was at any time involved in carrying battle casualties from the helipad at Vung Tau hospital into the hospital itself. Mr Hodgson said he heard that was the case on a couple of occasions. He said he wasn’t there at the time, by which I understood him to mean he never witnessed such an event.
42. Therefore, as far as the incident of unloading wounded from DUSTOFF helicopters is concerned, the only direct evidence of such an event taking place is the statement by Mr Easton. Neither Mr Betts nor Mr Hodgson had any direct knowledge of such an event taking place. That is despite the fact Mr Betts was the Detachment Commander of Detachment 30 Terminal Squadron between March 1967 and February 1968. Furthermore, the objective evidence provided from the military records by Mr Barsley directly contradicts Mr Easton’s evidence. That evidence was that the Field Hospital was well resourced to meet its primary function, which was the reception, assessment and treatment of battle casualties. Furthermore, there was no predictability about when battle casualties would be brought to the hospital and in fact staff at the hospital were usually given between 15 and 30 minutes notice by radio of incoming casualties. Logically, such an operation could not possibly rely on the ad hoc co-option of non-medical staff to assist in the reception of battle casualties, particularly as those casualties could occur at any time of day or night. For those reasons, I accept the objective evidence rather than that of Mr Easton.In addition, as Colonel Naughton said, the entire process of receiving battle casualties was well organised and the attendance or presence of non-essential personnel who had no direct role in the reception of those casualties was actively discouraged. Therefore, on the balance of probability, I cannot accept Mr Easton’s statement about assisting in the transfer battle casualties from DUSTOFF helicopters to the hospital as being accurate. In fact, I am satisfied beyond reasonable doubt that the event described by Mr Easton did not occur.
loading coffins
43. Mr Easton claimed the most significant event which he experienced in Vietnam was seeing the name of Mr Doherty on a coffin which he was required to load onto a C130 aircraft for transportation to Australia. Mr Easton said he first met Mr Doherty during basic training and he was in the same company, platoon and section hut at Puckapunyal. He said they became good friends. Mr Doherty was posted to an infantry battalion for Corp training and he lost contact with him at that time. He said in late February 1968, when he was involved in the task of loading coffins of Australian soldiers killed in action, he remembered seeing Mr Doherty’s name on the outside of the coffin. He said he definitely saw Mr Doherty’s name and that’s how he knew Mr Doherty had been killed.
44. Dr Percival also recorded this incident in the history given to him by Mr Easton. Dr Percival reported Mr Easton glanced down at one of the coffins and saw Mr Doherty’s name on the coffin. Dr Percival saw and re-assessed Mr Easton on 16 January 2007 and prepared a report bearing that date. By this time, Dr Percival had been provided with the two reports prepared by Mr Barsley. In those reports, Mr Barsley set out, in some detail, the process for handling battle casualties and in particular the bodies of deceased Australian servicemen.
45. Mr Barsley’s research indicates that the bodies of all deceased Australian servicemen were transported by air from hospitals or from the battlefield and lodged with the US Army mortuary located at Saigon airport. There the bodies were prepared for return to Australia (or Terandak in Malaysia) by RAAF aircraft. Mr Barsley noted the bodies were transported in hermetically sealed aluminium caskets by RAAF C130 courier aircraft each Thursday (as necessary). A work party from Detachment 30 Terminal Squadron was flown to Saigon by Caribou aircraft to meet with the scheduled RAAF C130 courier aircraft. There was no dispute about the fact that Detachment 30 Terminal Squadron personnel provided assistance with loading the hermetically sealed aluminium caskets onto the C130 aircraft. The loading was supervised by the Loadmaster of the aircraft. On some occasions, the caskets were loaded onto Caribou aircraft which carried them from Saigon to Vung Tau for loading onto C130 aircraft at that airfield. The caskets themselves were delivered to the airfield from the United States Army mortuary by US soldiers. The load manifests for cargo or passengers were arranged by the Saigon and Vung Tau sections of Detachment 11 Movement Control Group in conjunction with RAAF Movements staff. The aluminium caskets being transported had a cloth tag attached which bore an identification number only. Documentation regarding the details of the bodies being transported were handed to the aircraft Loadmaster in a sealed envelope for each casket assigned as their cargo. The sealed envelope contained documentation bearing details such as identification of the body, condition of the body, injuries and location of the contact incident. However, no name was placed on the outside of any casket. There was a metal pouch attached to the casket and normally the envelope containing the documents was either placed in this pouch or held by the aircrew.
46. Mr Barsley’s research indicates the remains of Mr Doherty were returned to Australia on an RAAF courier flight VT509 which departed from Tan Son Nhut airport on 23 February 1968 and arrived at RAAF Richmond via Butterworth on 26 February 1968.
47. A Staff Instruction (2/67) was issued to the RAAF Movement Control Officer at Vung Tau and the NCO in charge of RAAF air movements at Tan Son Nhut. That Staff Instruction sets out the way in which caskets containing human remains were to be loaded or unloaded from aircraft. The instruction states the RAAF Movement Control Officer, Vietnam was to check personally all documents at Tan Son Nhut mortuary before the caskets were accepted for loading. The RAAF Movement Control Officer was personally responsible for calling forward caskets from the mortuary to be flown back to Malaysia or Australia. The handling operations were to be under the direct and personal supervision of the RAAF Movement Control Officer, Vietnam and the RAAF Movement Officer at Vung Tau. Those officers were also required to personally ensure all caskets were correctly loaded and that the associated paperwork accompanied them.
48. Having read Mr Barsley’s report of 18 September 2006, Dr Percival reported Mr Easton freely acknowledged his belief that he had seen Mr Doherty’s name on the coffin was clearly erroneous, though he could not explain the reason for his belief. Nevertheless, Mr Easton continued to maintain he believed he had in some context seen Mr Doherty’s name on the paperwork which made it clear he had been killed and that his body was being repatriated. When asked in cross-examination about the fact that the names were not placed on the hermetically sealed caskets, Mr Easton nevertheless said:
No. I – I definitely, in my mind, seen a name on the coffin.
When pressed that he might have been mistaken, Mr Easton disagreed and said:
No. I always said there was – I saw a name on that coffin, and I’m sticking with it.
At the end of his cross‑examination, I asked Mr Easton what he meant when he said; in my mind I saw the name. Mr Easton answered he had nightmares about it and he always sees Mr Doherty’s name. When asked whether he physically saw the name on the coffin he said it was on a tag, attached to the coffin. Then he said, It was attached, it was on a clipboard or …. Mr Easton did not complete that sentence but then said he had seen something and he did have nightmares about it.
49. Mr Hodgson, in his written statement, also referred to the loading of bodies in coffins for transport to Australia. He indicated that a Caribou aircraft would bring the coffins from Saigon to Vung Tau and they would be transferred onto the waiting C130. That seems to accord with Mr Barsley’s research which indicated Mr Doherty’s remains were returned to Australia on RAAF courier flight VT509. I have little doubt that the VT before the number of the flight indicates the flight originated at Vung Tau and not Saigon. Mr Hodgson then said in his statement each coffin had an outline of a body stating which parts were missing and the name of the deceased. Mr Hodgson also said on one occasion he loaded a body of a friend of his, Mr Davison.
50. Once again, the evidence given by Mr Easton is strongly at odds with the evidence given by Mr Barsley following his research into the repatriation of Australian soldiers killed in Vietnam. However, given the hermetically sealed aluminium caskets were a reusable item, it seems to me that Mr Barsley’s research is likely to be accurate. Also, the process for calling forward caskets from the mortuary and checking and identifying the documentation as described by Mr Barsley is likely to be correct. That is because the Staff Instruction (2/67) clearly supports what Mr Barsley has said. The respective RAAF Movements Control Officers at Saigon and Vung Tau were responsible to ensure that the paperwork accompanying the caskets was with them. It is highly unlikely and in fact Mr Easton’s evidence is to the contrary, that he opened any of the sealed envelopes containing details of the body in any particular casket. It is therefore not possible for Mr Easton to have seen the name of Mr Doherty on a casket. He appears to have acknowledged this to Dr Percival on 16 January 2007. Therefore, I am satisfied beyond reasonable doubt that this event, as described by Mr Easton, did not occur.
medivac flights
51. Mr Easton contended that as a member of Detachment 30 Terminal Squadron, he assisted in the loading of wounded soldiers on C130 Medivac flights to Australia. Mr Easton confirmed in cross-examination that those wounded soldiers had been treated in hospital before being repatriated to Australia. Mr Easton said in evidence that although some of those soldiers had missing limbs, they were sort of, all healed up. Mr Easton did not give evidence about his reaction to carrying out that duty. However, Dr Percival’s report of 9 March 2005 records that after a considerable amount of evasion, Mr Easton finally talked about his involvement in loading RAAF Medivac C130 aircraft. But, according to the report, it involved returning dead soldiers who were already in their coffins and Australian wounded on stretchers to Australia. However, as Mr Easton emphatically pointed out in his evidence-in-chief, it was not permissible to load coffins onto the same aircraft where wounded soldiers were being returned to Australia.
52. What Dr Percival did record was when he questioned Mr Easton about the significance of the fact that his intrusive thinking was particularly triggered by material concerning minefields, Mr Easton told him a very high percentage of the casualties he loaded onto C130 aircraft were Australian soldiers who had lost limbs as a result of mine explosions. In explaining that to Dr Percival, Mr Easton displayed manifest distress. However, Dr Percival did not elicit from Mr Easton his response to that particular event. Although Dr Percival said Mr Easton’s exposure to casualty clearing operations satisfied Criterion A of DSM-IV, and paragraph 2 of Criterion A requires responses of intense fear, helplessness or horror, he has not recorded any response by Mr Easton to this event. Although Dr Percival, in his report of 5 December 2005, referred to the fact that Criterion A of DSM‑IV requires a person’s reaction to the experience relied on to be one of intense fear, helplessness or horror, he said this requirement is not included in the definition of experiencing a severe stressor which is set out in the relevant Statement of Principles (SoP). While that is undoubtedly correct, the SoP does state that for the purposes of that instrument, PTSD means a psychiatric condition meeting the description which follows and which is derived from DSM-IV. Under (A) of paragraph 2 of the SoP, in addition to being exposed to a traumatic event of the kind stated, the person’s response must involve intense fear, helplessness or horror. While it might be true to say the SOP sets a lesser test for the acceptance of causality than exists for the diagnosis itself, that, with respect to Dr Percival, seems to be logical.
53. Unless there is a response of the kind set out in DSM‑IV to the traumatic event, the medical practitioner cannot diagnose PTSD. If the medical practitioner is satisfied that the examinee satisfies both limbs of Criterion A in DSM‑IV (thereby satisfying the definition of PTSD for the purposes of the SoP), then one moves forward to causation. While Dr Percival was comparing the difference between the instrument for PTSD and alcohol dependence/alcohol abuse regarding the test to be satisfied for causality, and the test for causality in the alcohol dependence/alcohol abuse SoP covers both experiencing a traumatic event and the reaction to the event, that is not to say, as he does, in the case of PTSD, the veteran’s experiences have to pass a significantly harder test. It seems to me Dr Percival was attempting to compare the diagnosis of PTSD with causality under the alcohol dependence/alcohol abuse SoP. The diagnostic criteria for alcohol dependence/alcohol abuse are, of course, significantly different to those for PTSD.
54. When Mr Easton was interviewed by Dr Strauss on 31 August 2006 he told Dr Strauss his job in Vietnam involved setting up aircraft for Medivacs. According to Dr Strauss, Mr Easton said many of the soldiers who were returning home had lost limbs because of mine incidents and he told Dr Strauss seeing them was upsetting. That appears to be the only evidence regarding this incident which addresses the requirements in paragraph 2 of Criterion A of DSM‑IV. However, the reaction of being upset does not, in my view, meet the criterion in DSM‑IV which requires the response to be intense fear, helplessness or horror.
55. Mr Betts said in his written statement that sappers from Detachment 30 Terminal Squadron assisted with Medivacs including the loading of wounded on C130 aircraft for their return to Australia. Mr Hodgson also said members of Detachment 30 Terminal Squadron helped with the loading of stretcher-cases being Medivaced back to Australia. In his oral evidence, Mr Hodgson said he was involved in that task many times.
56. By way of contrast, Mr Barsley’s research indicates Detachment 30 Terminal Squadron staff were not involved in loading stretchers onto the aircraft for Medivac to Australia. Mr Barsley produced a photocopy of a photograph which was extracted from a publication entitled Vietnam Shorts. That photograph shows a RAAF bus backed up underneath the tail of a C130 aircraft. Wounded soldiers were being directly loaded onto the aircraft. Mr Barsley also interviewed Mrs W. McNeile who was formerly a Flight Lieutenant Nursing Officer with No 4 RAAF Hospital at Butterworth. According to Mrs McNeile, only medical and hospital staff handled the wounded onto Medivac flights, and cargo was never carried on those flights together with wounded soldiers. According to the report, stretcher cases were carried by hospital staff and they were covered with blankets. The publication Medicine at War, which was referred to by Mr Barsley, records that Field Ambulance Units operated in South Vietnam. According to that publication, 8 Field Ambulance comprised some 19 Officers and 125 other ranks. Further medical support was provided to the unit by the RAAF, including 9 Squadron helicopters used in evacuating casualties in the field and RAAF C130 aircraft for Medivac purposes. The RAAF C130 aircraft were staffed by medical officers, nurses and doctors. Given the number and nature of professional medical staff allocated to the task in South Vietnam, it is again, in my opinion, highly unlikely that non-medically trained staff would be involved in the repatriation of wounded soldiers to Australia. Those flights were conducted from Vung Tau where substantial medical resources were located. I am therefore satisfied beyond reasonable doubt that Mr Easton was not involved in assisting to load stretchers onto Medivac C130 aircraft.
riding shotgun to nui dat
57. According to Mr Easton, Detachment 30 Terminal Squadron was at times called on to provide armed escort for convoys travelling between Vung Tau and Nui Dat. He said on occasions he heard gunfire but he did not know where it was coming from. He said no trucks were hit by gunfire although it frightened him. Mr Betts also confirmed in his written statement that Detachment 30 Terminal Squadron personnel were involved in the daily convoys from Vung Tau to Nui Dat and they either travelled in Gun Jeeps or stood through the roof access of the cargo carrying trucks. Mr Betts did not say he was aware that any convoy was fired upon. Mr Hodgson also confirmed armed escort was one of the roles of Detachment 30 Terminal Squadron. Mr Hodgson also made no mention of gunfire.
58. In his oral evidence, Mr Easton said when he was on escort duty with the convoy, he heard gunfire on two occasions. Although that description was somewhat different to what Mr Easton had previously given when he said on many occasions there was gunfire, nothing turns on that. In attempting to clarify that point, Mr Easton said on at least two occasions he heard gunfire. However, Mr Easton did not say he feared the gunfire was directed at the convoy. Had that been the case, I have no doubt his memory of such an incident would be acute. Furthermore, Mr Barsley’s report stated the only recorded ambush of a convoy involving Australian vehicles occurred on 11 January 1971, at which time Mr Easton was back in Australia. In Mr Barsley’s view, it was possible Mr Easton performed armed escort duty even though no evidence of him having done so could be located.
59. At the conclusion of Mr Betts’ oral evidence, I asked him whether he was aware that before the convoys travelled the road between Vung Tau and Nui Dat, the road had been cleared by patrols. I also asked him if he was aware that the roads in the area were then colour coded and the convoy would only travel if the road had been declared green. Mr Betts agreed. He said he was aware the roads had been cleared as safe prior to the convoy commencing its journey.
60. I have also noted Mr Easton did not tell Dr Percival about this event or the consequences it had upon him. Nor did Mr Easton mention this event to Dr Strauss. This is despite the fact that Dr Strauss asked him if there were any other incidents he could remember in Vietnam which were of concern to him.
61. In my opinion, this event does not meet the requirements of Criterion A in DSM‑IV. It did not involve being confronted with an event of actual or threatened death or serious injury or threat to the physical integrity oneself or others. Furthermore, Mr Easton’s response to riding shotgun on convoys between Vung Tau and Nui Dat was not one of intense fear, helplessness or horror.
tet offensive/saigon
62. In a statement made on 15 February 2006 for the purposes of the VRB review of the Commission’s decision, Mr Easton said during the 1968 Tet Offensive, he was deployed to clean up the carnage in Saigon and to oversee the movement of troops in and out of the country. He said Saigon was a very dangerous place at any time but more so during the Tet Offensive. He said he had to stay inside the accommodation where he was billeted in the city, as the troubles continued outside day and night; and he could only move into areas to conduct his duties when there was a break in hostilities. Mr Easton said on those assignments to Saigon, he did not carry arms so he felt vulnerable as he moved around the city.
63. In a subsequent statement made on 31 January 2007, Mr Easton said during the Tet Offensive he was deployed to Saigon to unload planes and not to clean up the carnage as he said in his prior statement. He said he thought the word carnage meant the destruction of buildings and property, not people. He nevertheless repeated the remainder of his prior statement. In his oral evidence, Mr Easton said he had misinterpreted the meaning of the word carnage, thinking it was the destruction of buildings and structures but not people. He then said he meant to say he was deployed to Saigon to unload aircraft and he saw the carnage on the way out to the airport, by which he meant the destruction of buildings. I must say I did not fully understand what Mr Easton was trying to say. Even if he had misunderstood what carnage meant, he quite clearly was never involved in cleaning it up. As he subsequently said, he merely saw the destructed buildings and structures.
64. Mr Easton did not mention this as a significant event to Dr Percival or Dr Strauss, although he did tell Dr Strauss that on occasions, when he would go to Saigon to help unload planes, he remembered being in a hotel where he stayed at night and he heard gunfire outside. He said his reaction was that he felt helpless, worried and anxious. Mr Easton also said he was aware the destruction caused by the attack on Saigon at the start of the Tet Offensive was cleaned up by American soldiers.
65. Mr Barsley, in the several reports which he provided to the Tribunal, raised serious questions about whether Mr Easton was in Saigon during the period of the Tet Offensive attacks on that city. It is well documented that the Tet Offensive commenced in the early hours of 31 January 1968. Detachment 30 Terminal Squadron personnel went to Saigon for the purpose of unloading the QANTAS (707) charter aircraft which commenced a weekly operation starting on 29 January 1968. The first QANTAS flight was flown into Saigon on 29 January 1968 and departed Saigon on 30 January 1968. The next flight was scheduled to depart Sydney on 5 February 1968 but, as a signal obtained by Mr Barsley indicates, that flight terminated at RAAF Butterworth (undoubtedly due to enemy activity in Saigon at that time) and connecting C130 flights from Butterworth were flown into Vung Tau. The next QANTAS flight on 12 February 1968 was scheduled to operate on the same basis as the 5 February 1968 flight. However, Mr Barsley could not locate evidence to indicate it did not fly directly to Saigon. Mr Barsley spoke with Lieutenant Colonel Cameron who confirmed the 12 February 1968 QANTAS flight did go to Saigon.
66. The historical records obtained by Mr Barsley indicate the initial attack on Saigon began on 31 January 1968 and Tan Son Nhut air base was a principal target. Historical records also state that heavy fighting continued in Saigon and suburbs through to 5 February 1968. Major action was centred in the Cholon district where the other ranks billet was located (Hotel Canberra). A chronology of attacks on Tan Son Nhut airport indicates that after the 31 January 1968 assault, Tan Son Nhut airport was not attacked again until 18 February 1968. Mr Barsley’s researches also revealed it was normal for detachments from Detachment 30 Terminal Squadron, which comprised one non-commissioned officer and five other ranks, to travel from Vung Tau to Saigon on the morning of the arrival of a charter and to return to Vung Tau in the afternoon of the same day. The charter aircraft was scheduled to arrive at Tan Son Nhut at about 11.00am. It was only on the ground for about one and a half hours. The Caribou courier aircraft which operated between Vung Tau and Saigon was scheduled to depart Tan Son Nhut at 3.30pm. Therefore, in the ordinary course of assisting to unload a charter aircraft, Detachment 30 Terminal Squadron personnel travelled to Saigon and back on the same day.
67. Mr Easton’s evidence, as I understood it, was that at sometime during the Tet Offensive he was deployed to Saigon. Had it been the start of the Tet Offensive, that is on the morning and day of the very significant attack on Tan Son Nhut airport and the Cholon district, I have no doubt he would have clearly recalled that. He did not. Therefore, I am satisfied Mr Easton was not in Saigon on 31 January 1968. The next occasion when Mr Easton could have been in Saigon was on 12 February 1968. Even if Mr Easton was in Saigon on that day and stayed overnight, it is unlikely he would have heard any fighting in the Saigon suburbs. The fighting had subsided by 5 February 1968. Therefore, while I cannot discount the possibility Mr Easton heard gunfire while staying overnight in Saigon at the Hotel Canberra, it does seem unlikely. Even if he did, it is not my view that such an event would satisfy Criterion A of DSM‑IV because that event could not be described as involving actual or threatened death of serious injury or a threat to the physical integrity of self or others. Also, there was no evidence before me that Mr Easton’s response was anything other than what he said in his report of 15 February 2006; i.e. he felt very vulnerable.
68. By way of conclusion regarding the diagnosis of PTSD by Dr Percival, my opinion is that Mr Easton does not suffer from PTSD because he does not satisfy the diagnostic criteria set out in DSM‑IV. While he may satisfy some of the criteria set out in DSM‑IV, particularly those describing symptomology, Criterion A is not satisfied by any of the traumatic events claimed to have been experienced by Mr Easton in Vietnam. Either Mr Easton did not experience the events as he has described or, as far as the convoy escort duty and hearing gunfire when staying at Hotel Canberra are concerned, those events do not satisfy Criterion A(1). I therefore agree with Dr Strauss that Mr Easton does not have PTSD; although he may have another psychiatric condition. Because I have reached this view about the diagnosis, I am not required to determine whether there is a reasonable hypothesis linking Mr Easton’s operational service with his claimed PTSD condition.
generalised anxiety disorder
69. Dr Strauss was of the view that Mr Easton suffers from GAD. In his opinion, Mr Easton was rendered rather tense and anxious as a consequence of his time in Vietnam and he resorted to alcohol as a way of coping with his high levels of anxiety. He said Mr Easton’s anxiety continued for many years and has gradually worsened with advancing age. Dr Strauss was of the opinion that this, combined with Mr Easton’s personality type, caused him to seek treatment and it is appropriate he is taking antidepressants. Dr Strauss was of the view that Mr Easton was unable to conduct remunerative work for more than eight hours per week because of his psychiatric problems. He said Mr Easton is a man prone to irritability, tends to have difficulties with interpersonal relationships and these factors make it hard for him to work. He could not see Mr Easton working again.
70. Dr Percival, on the other hand, was quite certain that Mr Easton was suffering from PTSD. However, he agreed that PTSD is an anxiety disorder but rather more specialised. In his written report of 16 January 2007, Dr Percival noted there was significant overlap in the symptoms between PTSD and GAD. Therefore, Dr Percival said if I were to reject the diagnosis of PTSD, there remained a perfectly adequate diagnosis of GAD. It seems to me then, on the evidence which was before me, I must find that on the balance of probability, Mr Easton does suffer from GAD. Ordinarily, I would be required to go through the four steps outlined by the Full Court of the Federal Court in Deledio. However, having examined in detail the evidence which was before me regarding the events upon which Mr Easton relies for his claim, it would be repetitive to take the the fourth Deledio step, where I am required to make findings of fact, because I have already done so in relation to the diagnosis of PTSD.
generalised anxiety disorder – reasonable hypothesis
71. As is fully explained in Deledio, the first step I need to take is to consider all of the material before me and determine whether it points to a hypothesis connecting Mr Easton’s GAD with the circumstances of his operational service in Vietnam. There is no question there is such material before me. Mr Easton has referred to six events which he says form the basis for his claim. There is no question Mr Easton satisfies the first step.
72. According to the second step, I must ascertain whether there is in force an SoP determined by the Repatriation Medical Authority (RMA) under s 196B(2) or s 196(11). There is such an SoP, Instrument No 1 of 2000.
73. The third Deledio step requires me to form an opinion about whether the hypothesis raised is reasonable. It will be reasonable if it fits, that is to say, it is consistent with the template, to be found in the SoP. The hypothesis raised must contain one or more of the factors which the RMA has determined to be the minimum which must exist, and be related to the person’s service.
74. According to Clause 4 of the SoP for GAD, at least one of the factors set out in Clause 5 must be related to any relevant service rendered by Mr Easton. The only factor relevant in Mr Easton’s case is that set out in Clause 5(a)(ii) which states:
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; …
75. The expression severe psychosocial stressor is defined at Clause 8 of the SoP in the following way:
“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; …
76. According to Dr Strauss, Mr Easton’s GAD began when he was in Vietnam due to his experiences there, combined with his personality type. He said that Mr Easton’s anxiety had increased with advancing years. I therefore accept the clinical onset of GAD was within two years of Mr Easton’s Vietnam experience. Also, because at this stage I am merely dealing with a hypothesis, I accept that the hypothesis raised is reasonable, as it is consistent with the template established by the SoP. That is to say the experiences recited by Mr Easton regarding the loading of wounded soldiers unto C130 Medivac aircraft; the handling of Mr Doherty’s coffin; and assisting with the transport of recently wounded soldiers from the DUSTOFF helicopter to the hospital at Vung Tau could be described as severe psychosocial stressors.
77. However, the hearing of gunfire while Mr Easton was on escort duty with convoys between Vung Tau and Nui Dat does not fit the description of severe psychosocial stressor as required by the SoP. There is nothing in the material which suggests any convoys with which Mr Easton was involved were shot at. The same can be said of hearing gunfire when staying at the Hotel Canberra.
78. The problem of course arises with the fourth Deledio step where I must consider whether I am satisfied beyond reasonable doubt that Mr Easton’s disease was not war-caused. As the High Court (Mason CJ, Gaudron and McHugh JJ) said in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 57:
[The Commission] … is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved, either by proof beyond reasonable doubt that a fact or fact relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis. …
79. Since I have analysed the evidentiary material in some detail in discussing the diagnosis of PTSD, no purpose can be served by me repeating that here. Suffice to say I am satisfied beyond reasonable doubt that the events relied on by Mr Easton, save for riding shotgun on the Vung Tau to Nui Dat convoys and hearing gunfire when staying at the Hotel Canberra, did not occur. For that reason, I am satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved. Therefore, I am satisfied beyond reasonable doubt that Mr Easton’s GAD is not war-caused.
alcohol abuse - diagnosis
80. For the purposes of the SoP dealing with alcohol dependence/alcohol abuse, alcohol abuse means the presence of cognitive, behavioural or physiological symptoms including the use of alcohol despite significant alcohol-related problems where these symptoms have never met the criteria for alcohol dependence. According to DSM‑IV, the diagnostic criteria include the following:
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.
81. Mr Easton’s evidence was he first commenced drinking alcohol when he was about 18 years old. This was before he joined the army. He said he would have one or two stubbies of beer a week. He said he first started regularly drinking when he went to Puckapunyal to commence his army training. He said he would drink two or three cans of beer a night or the equivalent. When Mr Easton was posted to his unit in Australia, he said he drank three or four stubbies a night on average and that would be every night. After he went to Vietnam, Mr Easton said that his drinking increased significantly. He said he used to drink four or five cans of beer a night and that increased after he saw Mr Doherty’s name on the coffin. He said it then increased to six to eight cans a night. He also said he drank spirits as well as beer for the remainder of his tour in Vietnam. Mr Easton said he did ease back on his drinking when he first came back from Vietnam but then more recently, it increased again.
82. Mrs Easton said in her evidence that her husband’s drinking habits had changed in the sense they increased after she married him. That was in 1970 after he had returned from Vietnam. Mrs Easton said he was drinking all the time, every night and it just gradually increased. She said the increased alcohol consumption changed Mr Easton’s moods and he would get very quiet and go and sit on his own and drink or he would go outside on his own and have a few beers. She said at other times he would get really anxious and uptight about things, when she kept out of his way.
83. There was no dispute between Dr Strauss and Dr Percival about the fact that Mr Easton’s pattern of alcohol use was maladaptive. Dr Strauss was of the view Mr Easton suffered from a substance abuse disorder related to his excessive alcohol consumption. However, Dr Strauss said in oral evidence that while he agreed Mr Easton was a heavy drinker and probably drank too much, he could not be classified as having an alcohol abuse condition because it did not fit the SoP. Dr Strauss also said alcohol did not affect Mr Easton’s vocational success over the years, although he agreed Mr Easton’s drinking was a problem. On the other hand, Dr Percival, in his report of 9 March 2005, recorded Mr Easton drank between two to four cans of beer per day for some six to twelve months, after which his drinking escalated to between four to six cans per day with a maximum of ten cans per night on perhaps two nights per week. Apparently, Mr Easton told Dr Percival he used alcohol to assist him to sleep and while he has never lost his driving licence, been dismissed from employment or reprimanded in the work situation, his drinking has caused problems in relationships, particularly with his wife and children.
84. In the alcohol questionnaire completed by Mr Easton on 23 December 2004, he said he did drink beer every day; on average, four to six cans. In answer to the question was there any particular reason for doing so, Mr Easton replied, the stress of military life. Mr Easton also noted his intake of alcohol changed between 1967 and 1968 to six to eight cans per day. He reported that the stress of military life in a war-zone was the cause of his increasing alcohol consumption. Mr Easton recorded his current alcohol intake as four to six stubbies per day, one bottle of Ouzo per week and two to three wines per night.
85. In cross-examination, Dr Strauss was specifically asked whether, from the history given to him by Mr Easton, there was sufficient evidence for a clinical diagnosis of alcohol abuse within two years after his Vietnam experience. Dr Strauss responded by saying he thought that Mr Easton started drinking heavily in Vietnam. However, when taken through the diagnostic criteria for alcohol abuse as set out in the SoP (which is specified in DSM‑IV), Dr Strauss said Mr Easton is a man who drinks too much from a medical point of view. Although it is bad for his health, Dr Strauss was of the view it did not necessarily affect his interpersonal relationships. He said if he was Mr Easton’s treating doctor, he would warn him he was drinking too much but he was not of the view that it brought about any significant malfunctioning in his behaviour. Dr Strauss was then referred to Mrs Easton’s evidence, and particularly the fact that she learnt to keep out of his way when he was drinking excessively and not criticise him. Dr Strauss was asked whether those signs, if they were explored further, could be signs of behavioural problems from excessive alcohol consumption. Dr Strauss said: possibly. I can’t, I don’t know for sure. It’s possible. When it was put to Dr Strauss that Mr Easton exhibited a failure to relate to his wife and children properly and a failure to carry out a nurturing role, Dr Strauss said: we don’t know whether that comes about because he was drinking too much or whether he just simply couldn’t because of his personality type.
86. Mrs Easton agreed her husband had increased his drinking and that they did not socialise very much, only occasionally going to a club. She said every afternoon about five o’clock he started drinking three or four cans of beer and then moved on to spirits and possibly some port. In her oral evidence, Mrs Easton was asked what effect drinking had on her husband, and she said: it changed his moods a bit. She said that her husband sometimes would become very quiet and go and sit on his own and drink. At other times, he would get really anxious and uptight about things and she said then she simply kept out of his way. Mrs Easton also said her husband, at the beginning of their marriage, was a workaholic. She said he worked seven days a week and that went on for many years. She also said he was on call at night and so he was always in and out. I must say that piece of evidence does not sit comfortably with the rate at which Mrs Easton said her husband was drinking. It is difficult not to conclude that a man who had six to eight cans of beer, some spirits and glasses of wine would be affected by the alcohol. It is difficult to imagine that person then going out to work at night.
87. Mrs Easton was directly asked if her husband’s consumption of alcohol impacted on his work and she said it did not. There was no evidence from Mr Easton that his drinking impacted on his work. In fact, under cross-examination, Mrs Easton said on nights he was on call, he kept his drinking under control. She agreed that he had never been charged with driving while over the alcohol limit. Mrs Easton said her husband was conscientious about not breaking that rule because his job would be gone. She agreed Mr Easton had, throughout their marriage, been a good provider.
88. I asked Mrs Easton whether her husband’s behaviour in public, while drinking, was anything other than normal. I asked her if he ever got into arguments or fights. She said he had on one occasion when they were at an engagement party and another man, who was drunk, grabbed her by the hair and was going to hit her. She said her husband then lost it completely. I asked if that kind of event happened often and she said no, not very often. I also asked Mrs Easton whether her husband’s drinking had any serious effect on her home life or the children. She said that she sometimes found it distressing because she couldn’t see the reason why he needed to drink as much as he did but she said she would just go on her own way and keep out of his way.
89. I share Dr Strauss’ view regarding the diagnosis of alcohol abuse. The evidence does not disclose a maladaptive pattern of alcohol abuse leading to clinically significant impairment or distress. There was no evidence Mr Easton’s alcohol consumption resulted in a failure by him to fulfil any major obligations at work or at home. There was no evidence he used alcohol in situations when it was physically hazardous. There were no legal problems related to his alcohol abuse and he had never lost his driving licence due to alcohol consumption. Although Mrs Easton was quite clearly distressed by his consumption of alcohol, she nevertheless did not give evidence of recurrent social or interpersonal problems caused or exacerbated by the effect of alcohol. There was no evidence Mr Easton abused his wife or his children. In fact, Mrs Easton said he was a good provider. No evidence was obtained from his children regarding the effect on them of his level of alcohol consumption. Therefore, I must agree with Dr Strauss that although Mr Easton is a man who drinks too much from a medical point of view, he does not fit the diagnostic criteria for alcohol abuse as specified in DSM‑IV and stated in the SoP for alcohol dependence/alcohol abuse. It follows, I am satisfied, on the balance of probability, that Mr Easton does not suffer from alcohol abuse.
CONCLUSION
90. In my opinion, the evidence before me does not establish that Mr Easton suffers from PTSD. Of the six identified occurrences in the course of his operational service that Mr Easton relied upon, I am satisfied beyond reasonable doubt three events did not occur as recounted by him. The remaining three occurrences do not satisfy the diagnostic criteria set out in DSM IV.
91. Although I am satisfied that Mr Easton suffers from GAD, and that the material before me establishes a reasonable hypothesis connecting GAD with his operational service, when regard is had to events one, two and three, because I am satisfied beyond reasonable doubt that those events did not happen as recalled by Mr Easton, his claim for compensation on this ground must fail.
92. Unfortunately for Mr Easton, the evidence before me does not establish, on the balance of probability, that he suffers from alcohol abuse. Although I have no doubt that Mr Easton consumes excessive amounts of alcohol, he does not fit within the diagnostic criteria for alcohol abuse set out in DSM IV.
93. It necessarily follows that I am of the opinion that the decision of the VRB made on 28 March 2006 was correct and must be affirmed.
I certify that the 93 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Egon Fice, Member
Signed: ..............[Sanjiv Shah]...................
AssociateDates of Hearing 4 September 2007, 20 November 2007
and 18 February 2008
Date of Decision 24 June 2008Solicitor for the Applicant Mr Liefman
Solicitor for the Respondent Mr Purcell
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