Kenfield and Repatriation Commission
[2006] AATA 180
•1 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 180
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/1325
VETERANS' APPEALS DIVISION
Re: LESLIE STEPHEN KENFIELD
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Regina Perton, Member
Date: 1 March 2006
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Regina Perton
Member
VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ dysthymic disorder – whether war‑caused ‑ date of clinical onset ‑ severe psychosocial stressors – decision affirmed
Veterans' Entitlements Act 1986 ss 9, 120, 120A
Fogarty v Repatriation Commission (2003) 37 AAR 363
Lees v Repatriation Commission [2002] FCAFC 398
Re Robertson and Repatriation Commission (1998) 50 ALD 668
ReWitten and Repatriation Commission (1998) 54 ALD 605
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Cornelious [2002] FCA 750
White v Repatriation Commission [2004] FCA 633REASONS FOR DECISION
1 March 2006 Regina Perton, Member
1. Leslie Kenfield is 60 years old. He served in the Australian Army from 30 June 1965 to 30 June 1968. His service included almost a year in Vietnam, from 26 April 1966 to 18 April 1967, which qualifies as operational war service. The Repatriation Commission (the respondent) has accepted that Mr Kenfield has disabilities which are war-caused, namely cheiropompholyx, bilateral sensorineural hearing loss and bilateral tinnitus; for which Mr Kenfield receives a disability pension of 40 per cent of the general rate.
2. On 31 July 2002, Mr Kenfield lodged a claim which included a condition of nervous problems due to his war service. This condition was classified by a delegate of the respondent as Stress and Depression. On 30 September 2002 the delegate rejected the claim that Stress and Depression was war-caused. On 26 August 2003, the Veterans’ Review Board (VRB) amended the diagnosis to Depressive Disorder and Anxiety Disorder and affirmed the decision of the delegate. Another possible diagnosis of Mr Kenfield’s condition canvassed before the Tribunal is Post Traumatic Stress Disorder (PTSD).
3. The issues before the Tribunal are:
§Is Mr Kenfield suffering from Depressive Disorder or PTSD or another differently titled but related condition?
§When did the relevant condition first affect Mr Kenfield or was first diagnosed (the clinical onset)?
§Does Mr Kenfield meet the relevant Statement of Principles (SoP)?
EVIDENCE
Mr kenfield
4. In his claim form lodged and signed on 26 July 2002 (T5), Mr Kenfield stated that he was suffering from nervous problems. He stated that he was self‑employed but that he has to take time off work because of stress. He indicated that he …had to leave former employment because of stress.
5. In an unsigned and undated written statement (that bears a facsimile header of 16 August 2004), Mr Kenfield stated that he has difficulty expressing himself verbally. He stated that he had not mentioned matters raised in this statement previously either because he felt too upset to talk about them and/or that he had suppressed particularly memories. Mr Kenfield stated that in three earlier interviews with three different psychiatrists, he did not feel safe and comfortable telling them about his experiences in Vietnam.
6. Mr Kenfield described his background, his early stages in Vietnam and his time as an inexperienced soldier in a senior HQ. Under the heading of stresses in Vietnam, he described incidents that other soldiers had told him of including the death of a regular soldier he knew who had been run over by a heavy-duty forklift; blood on another’s soldier’s boots after he visited the American mortuary; how the foot had come off the body of an old Vietnamese man; and the recovery and identification of slain American soldiers. Under the heading of other situations, he described an occasion when he was in Vung Tau driving an American jeep and heard what sounded like shots. In his hurry to leave, he crashed into the rear of an American truck and destroyed the windscreen of his vehicle.
7. In a section entitled Saigon/Cholon, Mr Kenfield described working and living in Saigon. He lived on the third floor of a ‘hotel’ housing Australian soldiers. He stated that at that time the Viet Cong were active in blowing up hotels used by the allied forces. He described his driving tasks which included his experiences in driving a truck to a box factory in a rural area which manufactured crates for returning soldiers’ personal goods. Mr Kenfield stated that Australian soldiers were directed not to carry weapons in Saigon due to an agreement that the area would be free from military activity by the Viet Cong. However, he and the corporal with whom he worked, Peter Biggs, felt very exposed when going to the factory and carried weapons when travelling to the factory even though it was not allowed. Mr Kenfield stated that on one occasion, they were close to the factory when something wasn’t right and they turned back. They later learned that the expatriate American owner and his supervisors had been killed for dealing with the enemy at around the time they would have been there. He also described an explosion at a gasworks in Saigon that resulted in the death and injury of some local people, when they were picking up gas cylinders.
8. Mr Kenfield cited a particular incident when he was in a jeep being driven by a Peter Biggs. He stated that when they were driving through a roundabout, they heard heavy firing on the road in front of them and bullets seemed to be cracking all around them. Mr Biggs drove into an alley, they dumped the jeep and ran away from the shooting, hiding in a garden for ten to fifteen minutes until the shooting stopped. They then resumed their journey. Mr Kenfield stated that they were passed by some trucks, carrying bloodied bodies stacked in the back. Mr Kenfield related another incident when he was on an aircraft delivering mail to the Australians in Da Nang. As they approached the airbase, there were some loud thumping noises from the aircraft and the pilots took evasive action, which was particularly scary as they were close to the ground. Mr Kenfield stated that when the plane was inspected several large calibre bullet holes were seen in the wing, close to where he had been sitting.
9. Under the heading Vung Tau, Mr Kenfield indicated that he always felt exposed and vulnerable despite being heavily armed. In a section entitled People and Driving, Mr Kenfield said that he had to quickly develop a sixth sense about driving. He was constantly on alert for any foreign object on the roadway.
10. Mr Kenfield stated that he has a recurring dream of running down alleys and tiny roads in the domestic area of Saigon/Cholon. He tries to find his mates whom he knows are there but he never sees them or the enemy. He indicated he gets nervous when he sees gas cylinders and sometimes has flashbacks about exploding cylinders or driving around Nui Dat. He stated that the flashback lasts only a few seconds but leave him shaken and shaking for hours or days.
11. Mr Kenfield stated that on his return to Australia he tried to put Vietnam behind me. He worked for airlines in administration and obtained his pilot’s licence. He developed an interest in Scottish music, learned to paly the bagpipes and ran the Rats of Tobruk Memorial Pipe Band. He married, bought a home and raised a family. After leaving the airlines, he joined the Victoria Police. His duties were as a Cenotaph guard at the Shrine of Remembrance and he also joined the Victorian Police Pipe and Drum band for a few years. He stated that he had occasional dreams and flashbacks about Vietnam but thought they would go away over time. He said that after he started working as a courier in country Victoria, he began to suffer from flashbacks more often, on isolated roads. He described a motor vehicle accident in 1990 where the terrain reminded him of Vietnam; and he speculated that the accident may have been caused by a flashback. He indicated that things seemed better when he changed from the country run but his problems have since escalated. He has more flashbacks about Vietnam and has had more frequent drinking binges. He indicated he has lost interest in flying, music and social activities.
12. In his oral evidence Mr Kenfield indicated that he had not considered joining the army until he was called up for national service. He stated that he did not know what he wanted to do on his return from Vietnam and he signed up for an extra year in the army. He indicated that his work in Vietnam went beyond clerical work and involved a lot of driving. He described his shock at the death of someone he knew, one Titch Arnold, who fell from a tractor and was run over. He also described experiences of others relayed to him in Vietnam that upset him. Mr Kenfield stated that in his view, Mr Tilbrook’s description of the conditions in Vietnam (see below) was erroneous.
13. Mr Kenfield stated that he has been undergoing treatment for depression for a number of years. He believed that he was first prescribed anti‑depressants in the eighties. Mr Kenfield said that he could recall being very tired and restless after he returned from Vietnam. He initially moved in to a unit with three others, two of whom had been to Vietnam. Mr Kenfield recalled that he had a lack of confidence at that time, which has continued throughout his life. He said that he kept busy as work distracted him. He still works long hours. Mr Kenfield said that he does not like social interaction.
14. In cross-examination, Mr Purcell asked Mr Kenfield about his visits to a psychologist, Simon Parker. Mr Kenfield stated that he went to see him at the suggestion of the Vietnam Veterans’ Counselling Service. He indicated that his only prior treatment for depression was from Dr Mitchell in the 1980s when he was prescribed anti-depressants. Mr Kenfield stated that he took the anti-depressants only until the prescription ran out. He said that he is wary of taking drugs. He indicated that he had specifically gone to Dr Mitchell because of his depression. Mr Kenfield stated that prior to seeing Dr Mitchell, he had not spoken to a doctor about depression nor had any treatment for depression.
15. Mr Kenfield confirmed that the report of Dr Pomorin in September 2002 (see below) reflected the information he had provided. He confirmed that he had told Dr Pomorin that he was a non-drinker. Mr Kenfield said that he is a non-drinker in that he does not go out and drink socially but drinks at home. Mr Kenfield was referred to the first report of Dr Holwill prepared after his application to the VRB. Mr Kenfield confirmed that the information in that report reflected what he had told Dr Holwill on that occasion (see below).
16. Mr Purcell highlighted aspects of Mr Kenfield’s evidence before the VRB in August 2003 (Exhibit R6), including his response to the Board that he could not remember any specific incident that upset him during his time at Vung Tau. Mr Kenfield stated that he had found it difficult to answer and/or did not want to respond to some of the Board’s questions because of what they might think. Mr Kenfield also confirmed that he had told the Board that there had been no specific incident on any of his escort trips. He had also told the Board that there were no incidents he personally experienced on the daily trips he and Mr Biggs took in the jeep. Mr Kenfield said that he believed at that time that the answers he gave to the VRB were correct. He also said that he did not want to tell the VRB about a certain incident because it would have made him look stupid. He indicated that he had only described the incident about hearing shooting nearby and their diversion into the side street after the VRB’s rejection of his claim because Mr Biggs had reminded him of it.
17. Mr Purcell referred Mr Kenfield to his claim for hearing loss lodged with DVA in 1988 (Exhibit R7). In the medical examiner’s report, Mr Kenfield is described as ...lean, introspective, depressed individual. Pleasant but unhappy looking. Mr Kenfield agreed that he probably made the comment to the examiner that he …does not relate his present depression to events in Viet Nam, but resents public attitude to VN veterans…
18. Mr Purcell referred Mr Kenfield to the notes of his current general practitioner (Exhibit R8). On 12 July 2001, Dr Robert Howsam described Mr Kenfield as being a non smoker minimal alcohol. On 30 July 2002, his notes of a consultation with Mr Kenfield state:
Subjective: At end of teather [sic]
Working as contract driver 60 hours a week ends up at $10 an hour
Has not had holiday in 15 years
Cannot even take time off to see a doctor
….
Agitated losing weight
…
Examination:
…
Non smoker minimal alcohol no drugs
Trial aropax review.
19. Mr Kenfield responded that his doctor’s notes reflected what he had told him and that it would have been true at the time. In relation to the contrasting descriptions between Dr Howsam and others of his alcohol use and his, as described in his written statement, Mr Kenfield stated that he was not claiming alcohol abuse as a problem. He said that when he was driving he had to be careful with his alcohol consumption.
20. Mr Kenfield was referred to Dr Walton’s report of 13 July 2004 (Exhibit R4). Mr Kenfield confirmed that he had told Dr Walton that he felt quite vulnerable when driving around in Saigon but that there were no specific adverse events. Mr Kenfield conceded that he had told Dr Walton that his dreams did not contain themes of Vietnam but had changed his description in his subsequent written statement.
21. In response to questions about his work and interests after his service in Vietnam, Mr Kenfield confirmed that he continued serving in the army after national service and was promoted to corporal and acting sergeant. He also agreed that, over the next few years, he obtained a private pilot’s licence, was a keen motor bike rider, took part in parachuting and became interested in Scottish music. He organised and played with the Rats of Tobruk Memorial Band which comprised about 20 people. He met his wife in about 1974 and married about a year later. He agreed that he did not suffer any significant signs of depression in those years as he was always doing something to keep himself occupied. He worked for airlines for about 11 years and then joined the police force. He had also tried to join the air force in about 1968 but was rejected because of his hearing. Mr Kenfield said that he had not sought treatment or sought medical help as back in those days you didn’t complain about things.
22. As to why he had only introduced the information in his written statement after the application to the Tribunal, Mr Kenfield said that he did not recall some of the events in Vietnam until after he spoke to people he knew from Vietnam. This occurred after the VRB hearing and his appointment with Dr Holwill. Mr Purcell referred Mr Kenfield to an undated written statement made by Peter Biggs (Exhibit A5). Mr Biggs stated that post-Vietnam, he had met Mr Kenfield briefly in 1990 and again in 2004. Mr Kenfield agreed with Mr Biggs’ comment that Mr Kenfield had removed experiences of Vietnam from his memory until reminded of them by Mr Biggs and others. He confirmed that he had not told Mr Parker, his treating psychologist, who specialises in cases involving Vietnam veterans about the events mentioned in his statement during two years of counselling. Mr Kenfield disagreed with Mr Purcell’s suggestion that his written statement was the result of consultations with Mr Biggs in 2004. He agreed that they had discussed his statement but stated that he had written it out. He conceded that many of the events mentioned in the written statement had never been raised before. These included the gas cylinder explosion, the dumping of the jeep in a side alley and seeing the bloodied bodies on the truck soon thereafter. He conceded his written statement closely resembled that of Mr Biggs.
23. Mr Kenfield was shown a statement made by Peter Biggs on 25 September 2002 (Exhibit R1) in relation to Mr Biggs’ own DVA claim. Mr Biggs described a number of incidents also described in Mr Kenfield’s claim. Mr Kenfield explained that the use of the singular word by Mr Biggs in his claim did not mean that they were not both experiencing the same events. He stated that apart from his last month in Vietnam, he had been sharing accommodation and tasks with Mr Biggs, who had arrived in Vietnam before him. Mr Purcell brought to Mr Kenfield’s attention several paragraphs in Mr Biggs’ statement that were reflected in Mr Kenfield’s later statement but had not been raised with psychiatrists, a psychologist or his advocate at the VRB. Mr Kenfield explained that he had not remembered some of the events at the time and/or had felt that it was inappropriate to raise them either because of time limits in psychiatrist’s interviews or because of his fear of being ridiculed. He also stated that he had not told doctors about his drinking habits until recently as he did not want anyone to know he had a problem. Mr Kenfield maintained that the information he had provided in his written statement was correct.
24. Mr Kenfield indicated that he had met Mr Biggs on Anzac Day in 2004 and that Mrs Kenfield had typed up his statement in the month or so after that.
25. When the hearing of the matter resumed, Mr Kenfield tendered an article entitled Biggest Bluff of Vietnam War from the Daily Telegraph of 2 August 1966 (Exhibit A8). The article purports to tell the story of an Australian Army Landing Ship, the Vernon Sturdee, which penetrated a Viet Cong stronghold to carry out a mission the Americans said couldn’t be done. Mr Kenfield stated that he had been assigned to the ship and that travelled along a river near which enemy forces were said to be located, to deliver heavy equipment. Mr Biggs had provided the newspaper article. Mr Kenfield said that he was on the ship for about five hours. He was given weapons and was apprehensive but agreed that the trip itself was uneventful.
Writeway Reports
26. In three written reports dated 30 April 2004, 14 July 2004 and 14 November 2004 (Exhibits R2, R3 and R5), John Tilbrook of the Writeway Research Service provided details about conditions and events in Vietnam during the period Mr Kenfield served there. His reports also included specific information about Mr Kenfield’s service.
27. Mr Tilbrook’s first report, dated 30 April 2004, was completed prior to Mr Kenfield’s written statement. The report was based on evidence Mr Kenfield gave to the VRB stating that he had not experienced any particular severe psychosocial stressor but rather that his military service had been stressful overall, partly due to a lack of military training. Mr Tilbrook provided details of Mr Kenfield’s training and postings. He confirmed that despite being posted to a clerical position, Mr Kenfield had to undertake other duties as they were still setting up in Vung Tau. Mr Tilbrook described the oppressive heat experienced and the policy on carrying weapons only when away from the base. He described the major security incidents recorded in official records at the various postings while Mr Kenfield was in Vietnam. He also provided information about security, accommodation and other questions raised by DVA in commissioning the report.
28. Mr Tilbrook’s second report, dated 14 July 2004, contained further information following telephone interviews and written correspondence with Major R G Phillips, who had been the officer in charge of Mr Kenfield’s section. Major Phillips was able to give further specific details about Mr Kenfield’s duties and the nature of the challenges he faced. Major Phillips confirmed that the duties and living conditions of anyone in uniform in Vietnam at that time was most stressful. He indicated that he did not agree with the majority of findings in Mr Tilbrook’s earlier report.
29. The third report, dated 14 November 2004, was written after Mr Kenfield had provided his undated written statement. Mr Tilbrook prepared the report based on the stressor incidents described in Mr Kenfield’s statement. He described Stressor #1 as the death of ‘Titch’ Arnold and cited reports which indicated that alcohol had contributed to Mr Arnold’s accident as a passenger on a forklift. Mr Tilbrook noted that Mr Kenfield had not claimed to be a witness nor was he; and that understandably, all members of the unit including Mr Kenfield were saddened by this event.
30. Stressor #2 was the Attack on box factory near TAN SON NHUT. Mr Tilbrook noted that Mr Kenfield was involved in local purchase activity and that there was a contract for wooden packing cases. He accepted that Mr Kenfield travelled by truck to the factory through an area which had a population sympathetic to the enemy cause. However, Mr Tilbrook stated that there is no report in official records or in the press about an attack on the box factory.
31. Stressor #3 was the Explosion at gas works. Mr Tilbrook noted that DADOS (Deputy Assistant Director of Ordinance Services) staff was involved in activities that included purchasing industrial gas. He stated that there would have been no report in Australian records of such an explosion unless Australian servicemen were directly involved or injured in some way. Mr Tilbrook could find no account of the event in Vietnamese newspapers but noted that Major Phillips could recall that there had been some sort of similar incidents at that site.
32. Stressor #4 was Gunfire in Cholon. Mr Tilbrook described the official reports of Viet Cong attacks in that area and comments from Major Phillips. He concluded that it is possible that Mr Kenfield and Mr Biggs may have encountered the sound of heavy small arms firing in close vicinity somewhere ahead of them, and taken evasive action. He pointed out that Mr Kenfield had not claimed to be targeted by the enemy but commented that unexpected firing in such close proximity would have been sufficient cause for a heightened sense of hyper-vigilance. Mr Tilbrook also stated that it was possible that in Saigon Mr Kenfield may have witnessed civilian battle casualties being carried in trucks to the mortuary for identification as described in the written statement.
33. Stressor #5 was USAF C123 Provider transport aircraft hit by enemy SA fire at NHA TRANG. Mr Tilbrook indicated that the only recorded enemy attack in such circumstances was one in February 1967 and noted that Mr Kenfield had not provided any details of when he had undertaken the flight. Mr Tilbrook pointed out that weekly courier duties were undertaken by junior officers rather than privates. Mr Tilbrook could find no record of a private doing so. He described travel in military aircraft as being an intimidating or exhilarating experience for the uninitiated or inexperienced passenger. He stated that due to the ongoing threat of enemy small arms fire, the aircraft tended to adopt corkscrew manoeuvres on landing and takeoff. He commented that such manoeuvres caused strange and perplexing noises for inexperienced and nervous passengers.
Peter biggs
34. Mr Biggs provided two signed, undated, written statements; one concerning the non-clerical activities undertaken by clerical staff in Vietnam (Exhibit A5) and the other criticising the Writeway report prepared by Mr Tilbrook (Exhibit A6).
35. In his oral evidence, Mr Biggs indicated that he had been a corporal and Mr Kenfield a private and they worked together and shared accommodation for some ten months. He stated that they made several trips by jeep, as well as by other modes of transport, from Vung Tau to Nui Dat between May and September 1966. He said that most of the trips were as a single vehicle with Mr Kenfield driving. Mr Biggs stated that there was a major, a captain, a staff sergeant, Mr Kenfield and himself under the DADOS. He described himself and Mr Kenfield as the arms and legs of the unit. They performed clerical functions, drove trucks, carried stores, sourced local materials and performed other tasks as directed. He described in greater details some of the events cited by Mr Kenfield. Mr Biggs said that he, and Major Phillips, who was the officer in charge of DADOS, (Exhibit A7) believed much of the information in Mr Tilbrook’s reports was wrong. Mr Biggs stated that they were put into many stressful situations in Vietnam.
36. Under cross-examination Mr Biggs said that since Vietnam he had only met Mr Kenfield occasionally. The first was in 1969 when Mr Kenfield attended Mr Biggs’ wedding; the second in 1990 at an Ordinance function in Bandiana; the third on Anzac Day in 2004; and most recently, on the previous day, Anzac Day, in Albury. He confirmed that he had given Mr Kenfield a press clipping on the previous day.
37. Mr Biggs indicated that he has been recognised by DVA as suffering from PTSD. He denied making suggestions to Mr Kenfield as to what should be in the written statement. He said that he had provided Mr Kenfield with a copy of his statement as an example when Mr Kenfield had indicated to him that he was not sure how to prepare such a document. He stated that he was not sure what Mr Kenfield had put in as his final document.
38. Mr Biggs stated that he saw a difference in Mr Kenfield between what he was like as a serving soldier and the person he now is. Mr Biggs said that in Vietnam, Mr Kenfield was a good soldier and an intelligent and articulate man. When he met Mr Kenfield again years later, Mr Biggs said he was a different man, hesitant and unsure of himself.
Mrs Kenfield
39. Phyllis Kenfield provided a written statement dated 12 May 2004. Mrs Kenfield stated that she had met her husband in 1974, so could not comment on what he was like before he went to Vietnam. When they met she found him to be a quiet person who did not mix very well. She stated that he did not open up much to me or anybody else. She indicated that he lacked confidence when they met and still does. She described their relationship over the years including some difficult times. She described him having nightmares but was unaware of their content. Mrs Kenfield indicated that he could get upset quickly but then calm down. She stated that he disliked crowds and social functions. Mrs Kenfield stated that it was only in the previous four years that she had been able to get her husband to go to army functions.
Dr Pomorin
40. In a report to the Department of Veterans’ Affairs (DVA) dated 19 September 2002 (T8), Dr Norbert W Pomorin, Consultant Psychiatrist, stated:
…
His duties were those of an Ordinance Clerk and he also escorted supplies to units by air and provided mail escorts.
During his period of service he said that he experienced some stressful events.
He said that he was driving around the streets of Saigon in an American Jeep at a time when grenades were being thrown at American vehicles. There was never a grenade thrown at him.
He also flew in an aircraft while escorting mail to the AATTV Camp at Danang. He said he had a 45 Pistol which he did not know how to use. These journeys were uneventful.
Clearly the above-mentioned events cannot be described as emotionally traumatic.
Mr Kenfield also said that he never thought about them until he put in his claim to the Department of Veterans’ Affairs.
In other words there are no re-experiencing symptoms.
Mr Kenfield does present however, as a stressed and depressed individual whose local doctor is treating him with antidepressant medication, namely Zoloft (?dosage).
Mr Kenfield provided the history that he noticed that he had become depressed from the late 1970’s onwards. He said that he lacked confidence and had the desire to withdraw from people. He generally felt a sense of failure...He also experiences some mild sleep disturbance, feelings of exhaustion, and he has an impaired ability to concentrate.
…
Mr Kenfield has been working as a Courier for the past 15 years and currently works about 60 hours a week. There is no doubt that his excessive work and the pressure of work have brought about his feelings of depression.
…
Mr Kenfield is a non-drinker…
…
In summary I consider that Mr. Kenfield does suffer from stress and depression, but the same has not been caused by his military service.
Dr Strauss
41. Dr Nigel Strauss, Consultant and Occupational Psychiatrist, in a report prepared for Mr Kenfield’s solicitors dated 13 May 2004 (Exhibit A1), gave the following opinion:
In my opinion this man suffers from a long standing dysthymic disorder.
The essential feature of a dysthymic is a chronically depressed mood that occurs for most of the day more days than not for at least two years.
…
I am not convinced that this man has suffered from a major depressive disorder but it is possible.
…
…I am not convinced that this man developed a post traumatic stress disorder as a consequence of his time there [Vietnam] and I do not believe that he experienced an adequate stressor which would lead to a diagnosis of a post traumatic stress disorder. Furthermore I do not believe that he currently has symptoms which would suggest that he does have a post traumatic stress disorder…
42. In oral evidence, Dr Strauss confirmed his diagnosis of dysthymic disorder. He was satisfied that Mr Kenfield found his time in Vietnam stressful and that this may have contributed to his condition. However, he did not think there was one particular stressor that caused his depression; nor could he specify a particular date of clinical onset. He described Mr Kenfield as an obsessive person who tended to bottle up his emotions and may have been prone to depression throughout his adult life. Dr Strauss stated that he had not seen or heard enough evidence to suggest that Mr Kenfield had been in a life-threatening position so was not comfortable with a diagnosis of PTSD.
Dr Holwill
43. Dr Brendan J Holwill, Consultant Psychiatrist, in a report dated 11 June 2003 addressed to the advocate assisting Mr Kenfield with his VRB application, gave the following summary and opinion:
Mr Kenfield presents with a history of developing chronic, now moderately severe depression and generalised anxiety. The onset of his psychiatric condition appears to date from the early 1970’s and this would be chronologically linked to the time following his service in South Vietnam when he returned to Australia and felt ostracised and abused for having been a National Serviceman in South Vietnam. The service in South Vietnam itself was not particularly difficult and he admitted that the major difficulty he felt there was the humidity although he was fearful at times when doing escort duty.
His psychiatric condition has slowly worsened over the years and it is only in the past 12 months he has had any active treatment, but without significant benefit.
It is difficult to establish a clear linkage between his active service and the onset of his psychiatric symptoms but it does appear that his Army service and in particular his active service in South Vietnam, played at least a part, in the development of his chronic psychiatric conditions…
44. In a later report dated 7 July 2004 addressed to Mr Kenfield’s doctor (Exhibit A2), Dr Holwill stated:
…As you are aware, I assessed him last year for DVA. At that time he presented as a chronically anxious and depressed fellow who was very diffident, and had trouble relating a coherent history of his time in Vietnam.
He spent nearly a year there in the Ordinance Section and told me that he had never really seen any action. Following his return to Australia, he was initially well, but then slowly developed worsening anxiety and depression.
…
Today he gave me a detailed typed set of notes he had prepared, along with a statement from his wife. In the notes he describes his experiences in South Vietnam in much greater detail, and clearly he was in quite risky and at times very dangerous situations. He has also clarified his symptom complex, and it is apparent now that he does in fact have some nightmares of his service, and at times has had intrusive thoughts and even possible flashback phenomena.
Under those circumstances, I think it is appropriate for him to appeal DVA’s decision, and a diagnosis of post-traumatic stress disorder would be appropriate…
45. In his oral evidence Dr Holwill stated that, based on Mr Kenfield’s second visit, he was satisfied that a diagnosis of PTSD was appropriate. He stated that his initial diagnosis would have been different had he had the information, provided later, before him. Dr Holwill stated that it is very hard to know how far back Mr Kenfield’s illness was diagnosable.
Dr Walton
46. Dr Lester A. Walton provided a psychiatric report to DVA dated 13 July 2004 (Exhibit R4). It was written after an examination on 21 June 2004 , at which Mr Kenfield provided a copy of his undated written statement which is appended to the report. Dr Walton gave the following opinion:
1. This man is suffering from a mixed anxiety/depressive disorder.
2. I note that my colleague, Dr. B. Holwill, places the date of clinical onset at the early 1970s, when Mr. Kenfield reported that he developed insomnia. However, to me he clearly identified the emergence of not only insomnia but more widespread psychiatric symptoms from the time that he commenced duties as a Shrine guard, which I understand to be around 1982.
3. In relation to Instrument No. 1 of 2000 concerning Anxiety Disorder, there would seem to be a serious question surrounding whether or not the veteran has been exposed to a severe psychosocial stressor as defined, both in terms of the objective events he identifies and his subjective response, where the latter may be judged as falling short of substantial distress.
Whether or not Dr. Holwill’s or my date of clinical onset is preferred, it would seem that the veteran’s psychiatric condition did not begin within the two-year allowable period.
There is no suggestion that this veteran was suffering from any pre-existing condition which may have been aggravated.
…In relation to Instrument No. 58 of 1998 concerning Depressive Disorder, the veteran would qualify for diagnosis of dysthymic disorder, although that really does not adequately take into account the troublesome anxiety he experiences.
The same qualifications regarding exposure to a severe psychosocial stressor, and difficulties surrounding the date of clinical onset, arise with anxiety disorder…
If I were forced to choose between a principal diagnosis of anxiety disorder or depressive disorder, my preference would be anxiety disorder.
…
CONSIDERATION OF THE ISSUES
47. Section 9 of the Veterans’ Entitlements Act 1986 (the Act) sets out the circumstances in which a disease suffered by a veteran can be considered a war‑caused disease. It provides:
9(1) Subject to this section and section 9A, for the purposes of this Act, 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;
…
(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
…
but not otherwise.
(2) For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service:
…
(b)if the incapacity was due to a disease – the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-caused disease contracted by the veteran.
…
48. The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at the hearing.
49. Whether an applicant suffers from a condition is a preliminary issue (Fogarty v Repatriation Commission (2003) 37 AAR 363), to be decided on the balance of probabilities, under s 120(4) of the Act. There is agreement between the parties that Mr Kenfield suffers from a psychiatric condition, but there is disagreement between the parties and among the medical practitioners as to the diagnosis.
50. Mr Kenfield, in July 2002, self-diagnosed his condition as nervous problems. In September 2002, DVA classified the condition as stress and depression. Dr Pomorin, in his September 2002, had provided such a diagnosis. Dr Strauss in his May 2004 report and in oral evidence described the condition as dysthymic disorder and specifically ruled out PTSD. Dr Holwill’s June 2003 diagnosis was depression and generalised anxiety. In his second report of July 2004, he changed the diagnosis to PTSD and maintained that view in oral evidence. Dr Walton, in a report dated 13 July 2004, diagnosed mixed anxiety / depressive order with a preference for anxiety disorder. The opinions of Dr Strauss and Dr Walton were provided after they were given a copy of Mr Kenfield’s written statement as was the second opinion of Dr Holwill. Dr Pomorin gave his opinion prior to Mr Kenfield providing details of possible stressors. The Tribunal also notes the information provided by Mr Kenfield to the medical examiner in 1988, the oral evidence he gave to the VRB, as well as the circumstances in which the written statement was prepared. Two of the three psychiatrists, all of whom are qualified and experienced in the jurisdiction, determined that Mr Kenfield was not suffering from PTSD after examination and receipt of the written statements. Interestingly, Mr De Marchi, Mr Kenfield’s solicitor, submitted, in his Statement of Facts and Contentions dated 19 November 2004, that Mr Kenfield suffered from the conditions of Dysthymic Disorder and Depressive Disorder relying on the opinion of Dr Strauss who prepared his report for Mr De Marchi. He did not cite the second report of Dr Holwill, which the Tribunal notes was addressed to Mr Kenfield’s doctor, Dr Howsam, in July 2004, some four months earlier.
51. On the balance of probabilities, taking into account the diagnoses of Dr Strauss and Dr Walton and Mr Kenfield’s recollections as expressed prior to the written statement, the Tribunal finds that Mr Kenfield is suffering from dysthymic disorder.
52. The process of deciding whether the material before the Tribunal connects a disease, injury or death to war service, where s 120 and s 120A of the Act apply, was laid down by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four‑step process:
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 [Statement of Principles] 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.
53. The Tribunal has considered each of the four steps from Deledio. In respect of the first step, the Tribunal finds, after taking into account all relevant matters that the material points to a hypothesis connecting dysthymic disorder to the circumstances of the particular service rendered by Mr Kenfield.
54. In respect of the second step from Deledio, the relevant SoP for dysthymic disorder is within the SoP for Depressive Disorder, namely Instrument N°58 of 1998. Paragraph 2(b) of the SoP provides:
…For the purposes of this Statement of Principles, “depressive disorder” is defined as:
(A)the presence of major depressive disorder, dysthymic disorder or depression not otherwise specified where:
(i)major depressive disorder is either a single episode or recurrent episode as defined in DSM-IV; and
(ii)dysthymic disorder, as defined in DSM-IV, is a chronic mood disturbance, of at least two years duration, involving depressed mood, or loss of interest or pleasure, with manifestation of the symptoms used to diagnose major depression such as neurovegative signs, social withdrawal, cognitive impairment and suicidal ideation…
55. Paragraph 5 of the SoP sets out the factors that must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting dysthymic disorder with the circumstances of a person’s relevant service. They are:
(a)being a prisoner of war before the clinical onset of depressive disorder; or
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
(c)having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder; or
(d)having a major illness or injury within the two years immediately before the clinical onset of depressive disorder; or
(e)suffering from chronic pain of at least six months duration at the time of the clinical onset of depressive disorder; or
(f)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical worsening of depressive disorder; or
(g)having a major illness or injury within the two years immediately before the clinical worsening of depressive disorder; or
(h)having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of depressive disorder; or
(j)suffering from chronic pain of at least six months duration at the time of the clinical worsening of depressive disorder; or
(k)inability to obtain appropriate clinical management for depressive disorder.
56. It has not been claimed, nor does the evidence demonstrate, that Mr Kenfield meets factors 5(a), (c), (d), (g), (h), (j) or (k). In his submissions, Mr De Marchi did not specify which of the factors he believed his client met. For the Tribunal to be able to find that Mr Kenfield meets the criteria in 5(b) or (f), or indeed any of the factors that might fit his circumstances, it needs to consider the meaning of the terms clinical onset, clinically significant and severe psychosocial stressor. The latter terms are defined in paragraph 8 of the SoP:
…
“clinically significant” means sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or General Practitioner;
…
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems…
57. There is no definition of the term clinical onset in the SoP or in the Act. In Lees v Repatration Commission [2002] FCAFC 398, Repatriation Commission v Cornelious [2002] FCA 750 and other earlier cases, the clinical onset of a condition was said to occur when the symptoms of a condition have become sufficiently specific and severe for a medical practitioner to diagnose that particular condition, within the definition of the condition in the relevant SoP or the condition is actually found on diagnostic testing, regardless of the extent of symptoms. In Re Robertson and Repatriation Commission (1998) 50 ALD 668 the Tribunal said, at paragraph 23:
…
[that clinical onset occurs], either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.
In Re Witten and Repatriation Commission (1998) 54 ALD 605 the Tribunal concluded, at paragraph 19, that:
…A disorder may not, in fact, have been diagnosed during the relevant period … with the benefit of hindsight and taking into account symptoms described by a veteran, it would need to be possible for a medical practitioner to express the opinion that the described symptoms established the clinical onset of the disorder during the relevant period…
58. Mr Kendrick gave oral evidence that he first sought treatment for depression in the 1980s. Mr Kenfield stated that he had not sought medical treatment earlier than the 1980s as it was not the done thing to complain. There is no contemporaneous evidence of his condition, prior to the medical examination in relation to hearing loss in 1988. Mr Kendrick recalled feeling tired and restless on his return from Vietnam. He stated that he had a general lack of confidence throughout his life. His wife’s observation was that when she first met him in 1974, Mr Kenfield was a quiet person who did not mix very well. She stated that he has always appeared to lack confidence. Mr Biggs presented a picture of a competent, intelligent and articulate person during his time in Vietnam, whom he found quite changed many years later.
59. After his service in Vietnam, Mr Kenfield voluntarily stayed in the army for another year and was promoted. After leaving the army, he eventually worked for airlines for several years before joining the police force for seven years. After returning from Vietnam, he was involved in a range of leisure activities including gaining a pilot’s licence, learning a musical instrument, running a pipe band and parachuting. He has been in full time employment until the present time.
60. In 2002, Dr Pomorin noted that Mr Kenfield had told him that he had first noticed that he had become depressed in the late 1970s. Dr Pomorin was of the view that Mr Kenfield’s excessive hours and the pressure of working as a courier for the past 15 years had brought about his feelings of depression rather than his military service.
61. In May 2004, Dr Strauss was of the opinion that Mr Kenfield’s condition was long standing. He speculated in his report that Mr Kenfield’s dysthymia was possibly present when he joined the army but that his condition may have worsened as a consequence of his time in Vietnam. However, in oral evidence, he conceded that it was difficult to determine when symptoms manifested themselves given the lapse of time, Mr Kenfield’s personality and his inability or unwillingness to articulate his feelings. Dr Strauss indicated that Vietnam was a frightening experience for Mr Kenfield overall, but not because of any one particular event.
62. Dr Holwill, in his June 2003 report, suggested that the onset of Mr Kenfield’s psychiatric condition appeared to date from the early 1970s. In his July 2004 report, he stated that Mr Kenfield was initially well, but then slowly developed worsening anxiety and depression. In his oral evidence, he indicated that it was very hard to know how far back Mr Kenfield’s illness was diagnosable. Dr Walton, in his July 2004 report commented that it seemed that Mr Kenfield’s psychiatric condition did not begin within the two-year allowable period.
63. In forming a view on the date of clinical onset of Mr Kenfield’s dysthymic disorder, the Tribunal is not satisfied that there is evidence of clinical onset of Mr Kenfield’s condition within two years of service in Vietnam, i.e. by April 1969. Dr Strauss gave a speculative opinion in his May 2004 report, but in his oral evidence conceded that he could not give a specific time. Mr Kenfield’s work as a courier and as a police guard at the Shrine were also cited as possible causal factors, occupations he followed many years after his service in Vietnam. Mr Kenfield himself suggested he became aware of symptoms in the 1970s and did not seek treatment until the 1980s.
64. Even if the Tribunal were to accept Dr Strauss’s suggestion of Mr Kenfield being prone to depression and that he may already have been suffering from the condition when serving in Vietnam, factor 5(b), it is not satisfied that Mr Kenfield could meet the requirements of the definition of clinical worsening in the SoP. Mr Kenfield, by his own admission, did not seek any medical treatment for the condition until the 1980s.
65. Much of the evidence before the Tribunal concerned whether the stressors cited by Mr Kenfield constituted severe psychosocial stressors as defined in the SoP and judicially considered in White v Repatriation Commission [2004] FCA 633 and other cases. In light of the Tribunal’s findings concerning the nature of Mr Kenfield’s condition and the date of clinical onset, there is no need to consider whether the incidents cited by Mr Kendrick in his written statement and oral evidence meet the definition of severe psychosocial stressors.
66. In view of the Tribunal’s conclusions in relation to the date of clinical onset, there is no material or evidence pointing to Mr Kenfield meeting any of the relevant factors in the SoP concerning depressive disorder. Therefore, the hypothesis connecting this condition with Mr Kenfield’s service is deemed not to be a reasonable hypothesis, so Mr Kenfield does not satisfy Step 3 from Deledio. Therefore, he cannot establish that his disease or injury is war‑caused.
DECISION
67. The Tribunal affirms the decision under review.
I certify that the sixty-seven [67] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) .Olympia Sarrinikolaou
ClerkDates of hearing: 14 February 2005, 15 February 2005, 26 April 2005
Date of decision: 1 March 2006
Counsel for applicant: Mr D. De Marchi
Solicitor for applicant: De Marchi & AssociatesCounsel for respondent: Mr G. Purcell
Solicitor for respondent: Advocacy Branch, Department of Veterans’ Affairs
0
5
0