Kevin St Clair and Repatriation Commission
[2012] AATA 911
[2012] AATA 911
Division VETERANS' APPEALS DIVISION File Number
2010/2292
Re
Kevin St Clair
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 21 December 2012 Place Melbourne The Tribunal sets aside the decision under review concerning the applicant’s dysthymic disorder and substitutes a decision that the condition is war-caused. The Tribunal affirms the decision under review concerning haemorrhoids. The Tribunal remits the application for calculation of the applicable rate of pension.
................................[sgd]........................................
Regina Perton, Member
VETERANS’ AFFAIRS – veterans’ entitlements – depressive disorder - haemorrhoids – stressors – date of clinical onset – whether conditions war caused.
Veterans’ Entitlements Act 1986 ss 9, 120(1)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Kaluza v Repatriation Commission [2012] FCA 1244
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 32
Repatriation Commission v Hill [2002] FCAFC 192
Stoddart v Repatriation Commission (2003) 197 ALR 283
REASONS FOR DECISION
Regina Perton, Member 21 December 2012
Kevin St Clair, who is now 64 years old, served in the Australian Army (the army) from 28 January 1970 to 15 November 1971. He served in Vietnam from 27 August 1970 to 12 August 1971. This period constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).
Mr St Clair lodged claims in 1999 and 2007 to have a number of medical conditions assessed as being war-caused. The Repatriation Commission (the Commission) has accepted some, but not all, of those conditions as war-caused. Mr St Clair is currently receiving a disability pension at 50 per cent of the general rate.
The outstanding claims under consideration in this review are for depressive disorder and haemorrhoids. The claim for these conditions was lodged with the Commission on 9 May 2007 and refused on 1 November 2007. A review officer affirmed the refusals on 29 November 2007 as did the Veterans’ Review Board (VRB) on 23 March 2010. The application to this Tribunal was lodged on 8 June 2010.
WHAT ARE MR ST CLAIR'S MEDICAL CONDITIONS?
The Commission accepted that Mr St Clair's medical conditions of sensorineural hearing loss of the left ear, gastro-oesophageal reflux disease, spondylolisthesis L5-S1 and lumbar spondylosis were war-caused. The Commission has twice rejected Mr St Clair's claims for haemorrhoids. It has also rejected claims for depressive disorder, bilateral presbyopia, breathing problems and ankle problems.
The Tribunal is required to determine to its reasonable satisfaction whether Mr St Clair suffers from any particular injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622).
All of the health professionals who have assessed Mr St Clair in recent years have diagnosed him as suffering from a depressive or dysthymic disorder. There are also past diagnoses of haemorrhoids. The Commission concedes that Mr St Clair suffers from such medical conditions but does not agree that they are war-caused.
Based on the medical evidence provided, the Tribunal finds that Mr St Clair suffers from a depressive/dysthymic disorder. It is also satisfied that he has suffered from haemorrhoids. The Tribunal needs to make a determination on whether these conditions are war-caused.
ARE THE CONDITIONS WAR CAUSED?
LEGAL FRAMEWORK
Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That section requires decision-makers to determine that an injury or disease is war-caused, unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
In the circumstances of this case, where Mr St Clair has rendered operational service, the issue of whether the diagnosed conditions were caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97:
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.
IS DEPRESSIVE OR DYSTHYMIC DISORDER WAR-CAUSED?
In his oral evidence and a written statement dated 1 November 2010, Mr St Clair said that he lived in Rosebud between the ages of five and sixteen. He left school in the middle of 1964, aged sixteen. Shortly after he left school, he and his parents moved to Woorinen, near Swan Hill.
Mr St Clair stated that his childhood, teenage and young adult interests were those that many in his environment and era were involved in. At Rosebud, he went to the beach, swam and attended the local boys’ club and Sunday school. He participated in sports including cricket, football and swimming. He worked as a newspaper boy from the age of 11 and from 13 in a greengrocer’s and milk bar on weekends and holidays until he left Rosebud. When he moved to Woorinen, he continued to play football and took part in shooting which he had participated in from the age of 12. He also became interested in doing up cars.
After leaving school and moving to Woorinen, Mr St Clair commenced a five-year electrical mechanic apprenticeship with a Swan Hill firm which he completed in 1969. Mr St Clair stated that he had a good circle of friends. He described himself as having an outgoing and happy disposition. He went to Saturday night dances. He was best man at five weddings.
Mr St Clair first met his wife as a bridesmaid at a wedding where he was the best man in January 1969. They married in late August 1969. They remain married and have three children and several grandchildren. His first son was born while Mr St Clair was serving in Vietnam.
Mr St Clair was conscripted as a national serviceman on 28 January 1970. He arrived in Vietnam on 27 August 1970. He was initially posted to Nui Dat for about a month and then Vung Tau. As an electrical mechanic, Mr St Clair’s main role was to undertake electrical maintenance and wiring works. This involved working inside the base on which he was stationed as well as outside the base such as in small villages. He also undertook construction duties such as concreting and building. Other duties included perimeter night time piquet, night-time escort duties for the bus run into Vung Tau and night patrols outside the camp.
Mr St Clair expressed the opinion that the conditions, duties and events in Vietnam had caused him to develop major depression. In his statement, he stated that the onset of depression was while he was in Vietnam:
When doing work outside camp, performing piquet, escort work or on night patrol, I was continually on edge and became more increasingly wary and tense over the period of 12 months in Vietnam of becoming involved in a dangerous situation.
On the day I arrived at Nui Dat, I met and struck up a friendship with Marty Schuit. While I was stationed there, we socially mixed most nights after work. I transferred to Vung Tau late September. We both again, with others got together on a Sunday, as of now I understand to be 4 October 1970, for a 17 Construction Squad social day at Vung Tau. Part of the day was a volleyball match between both bases of which I participated in. After the match some of us joined in a drinking session. This session went on for quite a period of time, with additional cans of beer being obtained from others' rations. In part, I helped in arranging to get us to the camp to buy their beer rations for our consumption. The death of Marty Schuit on the way back to the Nui Dat had then and has still to this day, greatly impacted on me. I not only lost a friend at the time, but I strongly felt that I played a contributing factor in his death by arranging extra alcohol. The factors involving his death are constantly in my conscious; the drinking, his accident and death some two weeks later.
I visited Rod Pentigill [sic] the day he was medically evacuated to Vung Tau Field Hospital. My visit was as an acquaintance of his from home and that he was also a member of 17 Construction, stationed at Nui Dat. Though my visit was short due to Rod's condition, but I vividly noticed two badly wounded soldiers. At the time this shocked me greatly and till this day, I still have a profound memory of their wounds, the burns and disfigurement to the face of one.
On another occasion, I went on a small night detail of the Nui Dat’s camp tip. During that night there was a contact made by others close to where we were positioned. Though we kept ourselves out of the way, but as the contact was close by this put me on the edge of my nerves to the extent I thought in danger of being wounded or killed.
I also had an unnerving experience while travelling back late evening from Fire Support Base Garth to Nui Dat. A small group of us, with no escort support, had to travel on the back of a convoy of three trucks. Myself and two others were sitting outside on the back of the last vehicle, a low loader for transporting large machinery, when approximately halfway between Garth and Nui Dat, the lead truck slowed down to nearly a stop and three or four shots were fired without any warning. We then picked up speed and it was not until we stopped at Nui Dat that the three us found out it was only friendly fire by someone in the front truck as he was keen to get a few shots off. The three of us on the last truck did, at the time of the shots being fired, become fully alert and for myself, I felt very vulnerable and unsure of my safety, as we were out on back of a truck fully exposed…
Mr St Clair said that he drank more alcohol and increased his smoking during operational service and after his discharge. He stated in the last three months in Vietnam he found it difficult to sleep through the night and regularly awoke around midnight and then had a cigarette. He had not drunk much prior to his operational service. He stated he gave up drinking and smoking at around 35 years of age for health reasons and because of the impact those habits were having on his personal relationships.
Mr St Clair returned to his old employer in Swan Hill on discharge but that only lasted for a couple of years. He stated he was terminated. Mr St Clair said that his understanding of the reason was the indifferent and uncivil attitude he exhibited which was totally opposite to my pre army days. Mr St Clair and his family relocated to Bendigo in 1974 where he worked for a Melbourne based electrical firm. He was responsible for large projects that took in the Bendigo, Swan Hill and Robinvale areas. This job required him to travel and live away from home. Mr St Clair indicated he drank more heavily at that time. After about three and a half years, Mr St Clair joined the Victorian Public Service and moved to Melbourne in 1978, staying there for about six and a half years. Mr St Clair then obtained a position as works manager with the Public Works Department in Bendigo in 1984. He moved to a similar role in the Public Housing Department but his role became redundant in 1994. He transferred to a project manager position overseeing building works on public housing properties. Mr St Clair indicated that he has applied for higher positions without success. He stated that he received feedback that he was not successful due to a lack of interpersonal skills.
Mr St Clair was affected by the attitude of people towards service in Vietnam on his return home. He said that he did not realise at the time that his poor demeanour had affected his personal relationship with his wife and friends. He was ill tempered with his wife and would go into fits of rages. He isolated himself from family and friends and did not maintain contact with the mates he had before going into the army. This included the football club and the local RSL. No-one asked him about his time in Vietnam except on two occasions which only reinforced the vilification he said he had felt since his return.
Mr St Clair stated that his line managers at work have advised him more than once that his manner with fellow staff and senior managers was poor. He stated he was oblivious to the form of sickness he was suffering and its link to his active service until the first psychiatrist’s consultation diagnosed major depression. Mr St Clair said that he subsequently realised that the onset of his depressive condition was traceable to his time in Vietnam. He cited as symptoms his poor sleep patterns in Vietnam in the last three months; the difficulties he had in crowds and the antagonistic way he dealt with family, employers and close friends; his aggressiveness towards his wife and eldest son and his low self-esteem.
Mr St Clair indicated that a few years ago he met a person he knew from Swan Hill who works in a voluntary capacity for its Veterans Information Centre. This contact eventually led to Mr St Clair’s diagnosis and the assistance he now has through medication and psychiatric treatment. He stated that his wife is now better able to deal with, and understand, his condition.
Mr Ivan J F McNeill provided a statement in March 2010 confirming that Mr St Clair had undertaken his apprenticeship with his firm in Swan Hill. He stated that prior to Mr St Clair’s call-up for military service, he had been bright, outward going, actively involved in sport & made friends easily. Mr McNeill said that on Mr St Clair’s return, he noticed a marked changed in his character, a totally different person considerably withdrawn, took things more seriously & had varying mood swings.
Mr Russell McIlroy provided a statement dated 15 February 2010 in which he indicated that he had been Mr St Clair’s manager for the past seven years. He stated:
… Whilst his experience and skills have enabled him to perform in his role to a very high standard, Kevin has at times shown a tendency to over react to situations, and on occasions, be aggressive in his response to these situations.
At times during meetings, Kevin has responded to views expressed by other staff in negative ways which has required me to intervene and mediate.
I have also had to become involved when email responses provided by Kevin have created unnecessary tensions with the recipients.
It is unfortunate that this part of Kevin's performance has at times compromised the otherwise excellent work that Kevin has undertaken, and has reflected negatively on others' perceptions of his ability to perform in his role. It has also meant that his opportunities for promotion to higher positions have been compromised despite his knowledge and experience being sufficient to do so….
Mrs Patricia St Clair, in a written statement dated 11 February 2010 and in oral evidence, told the Tribunal that her husband was a changed person when he returned from Vietnam. They met and married before he commenced his military service. She said that within months, they had lost contact with his circle of friends and the football club mates. He rarely visited his parents who lived only a few kilometres away. His attitude towards his employer became so strained that his employment was terminated within two years of his return. Mrs St Clair said that they had built their own home but that her husband decided to sell it only eight months after moving in.
Mrs St Clair told the Tribunal about the difficulties she faced in their relationship. She said that things had improved somewhat since her husband commenced on medication and counselling.
Mr Rodney Pettingill was an acquaintance of Mr St Clair's in Swan Hill before they both began military service. They met again in Vietnam. They have not met since around 1975. Mr Pettingill is associated with two of the events which Mr St Clair has cited as stressors leading to his depression. In a statement dated 1 July 2009 Mr Pettingill stated:
I have known Kevin St Clair since about 1967. He was a normal knock – about – bloke.
I was drafted into the army in 1969 and met Kevin again in Nui Dat in Vietnam. I was wounded and admitted to hospital along with two others.
Kevin along with others visited us and were clearly appalled at the condition of and visual injuries of some of the patients.
My memory of this time is somewhat hazy due to pain relief drugs that anyone who visited will clearly remember the bloke with no lower face.
There was a burns patient… who’s whole body was one big scab and the smell was horrific. When Kevin visited I remember Kevin Smith and myself had returned from our first operations and our wounds were left gaping open for several days for shrapnel damaged tissue to be identified.
We would then return to theatre and wounds closed up. Kevin visited before our second operations and was visibly affected by what he saw and smelt.
After discharge from hospital I ran into Kevin on several occasions and found him to be very quiet, withdrawn and drinking heavily.
After discharge from the Army I again saw Kevin at the Woorinen Football Club but that didn't last long and I rarely saw him again. He no longer frequented the places I had known him to from before the Army.
I have no doubt, what he saw in Vung Tau hospital affected him deeply. His personality changed from happy out-going and friendly to stand-offish, withdrawn and morose.
I believe Kevin still had most of his tour to do in his work took him into contact with the Vietnamese people on a daily basis. My wounds were the result of a hand grenade thrown by a child - accompanied by his mother – (Hoi Me Village)…
In oral evidence by telephone from Queensland, Mr Pettingill said that he and Mr St Clair had both played reserve grade football at Woorinen. They were close acquaintances rather than close friends. He described Mr St Clair as pretty laid back. Mr Pettingill said he worked for an earth moving business while Mr St Clair was still doing his apprenticeship. Mr Pettingill was called up before Mr St Clair and was also in Vietnam before him. Mr Pettingill said that he was based at Nui Dat for most of his operational service. He said that he had not worked directly together but had met at the boozer and at hospital. They had different sets of friends.
Mr Pettingill said that he worked with the well-boring team. They did a couple of jobs near Vung Tau but worked mainly in the villages.
Mr Pettingill described what had happened on the day of Marty Schuit’s accident as he had been one of the people at the gathering that preceded his fall from the truck.
In relation to the injuries he suffered in January 1971, Mr Pettingill said the construction team was having lunch by the wall of a school when the grenade was thrown. Mr Pettingill ended up with lots of shrapnel around his groin, buttock and right arm. Kevin Smith was badly injured and was covered in blood. Another colleague was injured but not as badly. He said that they were on their own away from other Australian troops with no radio. They commandeered a South Vietnamese vehicle and drove to where there were other Australia troops. They were then taken to hospital in Vung Tau. Mr Pettingill was in hospital for 10 to 12 days. He had open wounds from shrapnel fragments which were eventually closed after several days spent in the hospital.
Mr Pettingill said he recalled a visit by Mr St Clair while he was in hospital. Mr St Clair was one of the first to visit him. Mr Pettingill also recalled visits by his boss and others. He said he was in a recovery ward for the first two days with not many others and was then moved to a bigger ward. Mr Pettingill said that he could not remember much of his time in the recovery ward as he was heavily sedated. He recalled there being someone in the main ward who was a burns victim. He described him as a mystery man who was covered in clear plastic bandages, open wounds and scabs. He recalled the smell associated with that patient. He remembered another person whose bottom jaw was smashed who was a flashy flabby mess. He did not know how long Mr St Clair was at hospital and could not recall their conversation.
After the hospital visit, Mr Pettingill recalled meeting Mr St Clair at Vung Tau. Mr St Clair seemed very standoffish and not very interested in talking. Mr Pettingill said that he went back to Swan Hill and saw him once or twice at the football club. It was Mr Pettingill’s impression that Mr St Clair did not want to know him or any of his old friends. He said that he did not socialise with Mr St Clair and could not recall seeing him again. He has had no contact with Mr St Clair since the early 1970s.
Under cross-examination, Mr Pettingill said that the first people to visit him were his sergeant and lieutenant. He believed Mr St Clair was next.
Mr Neil Skinner who also served in 17 Construction RAE provided a statement dated 15 March 2010. He stated he had met Mr St Clair during training before their postings to Vietnam. He said they both became friends of Marty Schuit and were devastated by his death. He also described the experience he, Mr St Clair and others had when they were assigned to an overnight rubbish dump guard detail. He stated that on that particular night there was gunfire from further around the perimeter wire. He stated that they were petrified and scared and immediately reported what they heard to the radio room and were told to stay low and stay where they were. Mr Skinner said that he calmed Mr St Clair as he feared for his life. He commented that Mr St Clair was a constant worrier and always seemed anxious and nervous.
A report was prepared on 15 September 2010 by Mr Peter Langford, a retired colonel, for Writeway Research Service Pty Ltd (Writeway Report). As well as confirming the details of Mr St Clair’s service, Mr Langford pointed out that in March 1971, Mr St Clair had been promoted to Lance Corporal and in June 1971, to Corporal. He confirmed that the duties as described by Mr St Clair including piquet duties and working on various project sites outside the base were accurate.
Mr Langford was asked to seek confirmation of details of two of the stressors cited by Mr St Clair, namely the death of Marty Schuit and the visit to Mr Pettingill at the Australian field hospital at Vung Tau. In relation to the circumstances leading to Mr Schuit’s death, Mr Langford commented that he had been briefed that Mr St Clair had recounted a feeling of guilt that he had contributed to the death by supplying extra beer from his stockpile following an earlier drinking session. Mr Langford pointed to the limits on purchasing no more than two open cans of beer at any one time but conceded that those regulations were not always observed. Mr Langford examined the roll books at the time of the accident and stated that Mr St Clair could have been present at the beach party that preceded Mr Schuit's death.
The list of Vietnam casualties showed that Mr Schuit died of injuries on 22 October 1971. He fell off the rear of a truck somewhere near Vung Tau fracturing his skull and subsequently died in hospital. Mr Langford summarised official reports as follows:
In summary, on 4 October 1970 a group of soldiers from 17 Constr Sqn at Nui Dat went to Vung Tau for a day at the beach. A considerable amount of beer was consumed during the day. On the return journey back to Nui Dat at around 1725 hours…..SPR Schuit fell from the rear of a truck and was run over. He had earlier been seen skylarking and standing up while the truck was in motion. Witnesses also stated that beer was being consumed on the truck…
Mr Langford commented that Mr St Clair would have known Mr Schuit but could not determine the closeness of any friendship. He stated that there is no doubt that the death would have had a significant emotional impact on members of the unit, particularly on those that knew him well.
In relation to Mr St Clair’s visit to the injured Mr Pettingill, Mr Langford commented:
…The Casualty List shows that on 23 January 1971 SPR Pettingill was wounded in the groin when a Vietnamese child threw a grenade amongst a group of soldiers. The incident occurred during a well boring activity…
An examination of the 17 Constr Sqn roll books shows that at the time of the incident the Veteran was based at Vung Tau. The Veteran’s unit was only a few minutes walk to 1 AFH so he certainly had the opportunity of visiting patients. Given that this was a military hospital dealing with battle casualties, visitors to the hospital wards would observe wounded and maimed patients, noting that the ‘walking wounded’ (i.e. the less seriously sick and injured) were required to regularly exercise in and around the hospital grounds. Only patients who were in the recovery wards or the intensive care unit were confined to bed in the wards. It is therefore quite likely that the Veteran did visit SPR Pettingill at 1 AFH and in doing so may have seen the two wounded soldiers as claimed, although by his own admission it was only a brief look. The Researcher considers that it is unlikely that they were Americans as the US Army had its own 36 Evacuation Hospital at Vung Tau and 1 AFH would not normally hold US patients.
…
The Researcher finds that it is most likely that the veteran did visit SPR Pettingill at 1 AFH and in doing so may have seen other wounded soldiers as described.
On 15 March 2012 Mr Langford provided another report on behalf of Writeway at the Commission’s request. A series of some 16 questions was asked concerning Mr St Clair’s claims and others who provided evidence supporting his claims. Further information was sought about the likely attendees at the trip to Vung Tau on 4 October 1970 which preceded Marty Schuit’s critical injuries and death two weeks later. Mr Langford provided a list of witnesses contained in a military police report following the incident which did not include the person who informed Mr St Clair of the accident.
In response to a question as to whether Mr St Clair would have had his own Land Rover and travelled to Nui Dat as he wished, Mr Langford stated that Mr St Clair had not attended an army basic driver’s course and so was not qualified as a driver. Mr St Clair challenged that finding, providing photographs at the hearing of his converted vehicle which allowed him to carry appropriate equipment for an electrician.
In relation to the claimed stressor of being in the last vehicle in a convoy when he heard shots that ultimately were demonstrated to be by someone in the first truck, Mr Langford stated that there was no report of such an incident on the route specified by Mr St Clair. Mr Langford commented that the unauthorised discharge of a weapon was a serious offence resulting in disciplinary action. He doubted that any soldier would willingly bring this punishment upon himself merely out of curiosity to fire his weapon.
In response to questions as to whether Mr St Clair would have been on overnight guard duty at the rubbish dump at Nui Dat, Mr Langford said it was possible.
Further information concerning the injuries suffered by Mr Pettingill, Mr Langford examined various documents concerning that day. He confirmed that the casualty list shows that on 22 January 1971 Mr Pettingill and two others were wounded when a Vietnamese youth threw a grenade amongst a group of soldiers who were engaged in a well boring task…[Mr Pettingill] was recorded as having sustained multiple fragment wounds to both thighs, perineum and right arm. Mr Langford noted that Mr St Clair was based at Vung Tau at the time of Mr Pettingill’s hospitalization there.
The Tribunal was presented with a number of reports and clinical notes from psychiatrists and general practitioners. Current and recent diagnoses are that Mr St Clair is suffering from depressive or dysthymic disorder.
Dr Christopher J Percival, consultant psychiatrist, provided a comprehensive report to the Department of Veterans’ Affairs (DVA) dated 23 October 2007. He examined Mr St Clair twice within the five weeks preceding the report and also interviewed Mrs St Clair. Dr Percival commented that there was a difference in Mr St Clair’s demeanour between the first and second interviews. He had commenced taking an anti-depressant after the first interview. Dr Percival took a similar history to that recounted by lay witnesses who described the changes in Mr St Clair’s behaviour and outlook after he came back from Vietnam. Dr Percival diagnosed a depressive disorder and looked at the requirements of the relevant Statement of Principles (SoP) No. 17 of 2007. He expressed the view that a reasonable hypothesis was raised connecting the veteran’s depressive illness to his service in Vietnam.
Dr Gianni D’Ortenzio has been Mr St Clair’s treating psychiatrist since 28 June 2010 following the retirement of his previous psychiatrist. In a report dated 3 May 2010 prior to becoming Mr St Clair’s treating psychiatrist, Dr D’Ortenzio stated that Mr St Clair had responded well to anti-depressant medication. His diagnosis included the following:
…In the first instance he developed a significant Adjustment Disorder with disturbances in emotion and conduct. As this resolved, he developed a chronic grumbling low-grade depression consistent with the diagnosis of a Dysthymic Disorder.
…
About three years ago as commonly happens, things came to a head in the workplace and his disorder was finally diagnosed and treated despite his chronic avoidance. He has responded considerably with the treatment.
…
As regards clinical onset, I believe the onset of the Adjustment Disorder was during his service in Vietnam.
The onset of the Dysthymic Disorder was in the context of the resolution of the Adjustment Disorder and would have been most likely either towards the end of his service in Vietnam but most certainly within months of his returning.
The onset of a secondary superimposed depressive disorder on top of the dysthymic disorder is a common and sequential evolution, which properly occurred in the late 1980s, coming to notice only in 2007 when finally brought to the attention of others outside the family…
In a report dated 30 August 2011, Dr D’Ortenzio stated that Mr St Clair has not worked since late June 2011 when his general practitioner put him on sick leave because of increasing difficulties in the workplace. He stated that Mr St Clair’s workplace and home difficulties relate to his ongoing dysthymic disorder. In September 2010 Dr D’Ortenzio had referred Mr St Clair to a psychologist which seemed to have some benefit on top of the medication but little real progress had been made given the chronicity of Mr St Clair’s well-established patterns of negative cognition. Dr D’Ortenzio maintained his view that:
The diagnoses are multiple and sequential. The most likely diagnosis that would have been made during his service is that of an adjustment disorder with mixed emotion and conduct problems.
In oral evidence, Dr D’Ortenzio confirmed that he is still Mr St Clair’s treating psychiatrist. He now sees Mr St Clair about every six weeks. Dr D’Ortenzio said that the grenade attack on Mr Pettingill appears to have had a significant impact on Mr St Clair as he identified with him given the nature and location of their work. He commented that Mr St Clair has reacted well to the medication. He agreed that the appropriate diagnosis is dysthymic disorder and maintained his view that it is service-related.
Dr Nigel Strauss, consultant psychiatrist, saw Mr St Clair at the Commission's request on 14 December2010. The history he took was consistent with the other psychiatrists and with that put forward by lay witnesses. Dr Strauss expressed his opinion as follows:
I have no doubt that Mr St Clair suffers from a dysthymic disorder which began while he was in Vietnam.
In other words, he has suffered from episodes of depression periodically over the years and, although he did not recognise that depression himself, I believe that he has been depressed.
He has manifested the depression which has been chronic in various ways. His memories of Vietnam are negative. He is hypersensitive. He has been quite aggressive and angry. His confidence has been low. He has been somewhat withdrawn socially.
It should be noted that Mr St Clair is a man who has always had obsessional traits in his personality and probably he was sensitive to his experiences in Vietnam. In other words, because of the nature of his personality he did not cope well with his time there.
I believe that the most significant event of his experiences in Vietnam was the fact that someone from his home town who did similar work to him in Vietnam was involved in a grenade attack. In my opinion Mr St Clair identified with that wounded individual whom he visited in hospital and began to fear that he too would be injured and possibly killed. I note that at that stage he was a father even though he had never met his son.
I repeat that he is a sensitive man who did not cope well with experiences there.
Whether or not his experiences can be classified as significant psychosocial stressors to meet the necessary criteria for the Statement of Principles for a dysthymic or depressive disorder is difficult for me to decide upon. I have no doubt that his experiences in Vietnam did bring about the development of his depression but I cannot comment absolutely about whether what he went through can be classified as appropriate or relevant psychosocial stressors.
…
I repeat that his depression began while he was in Vietnam even though no one diagnosed his condition and even though he apparently did not require treatment. The fact that this man has limited insight is significant. He did not appreciate his changed behaviour over those years, although he did suffer because of his depression. Nevertheless, on the basis of his account of events that I have been provided with I do accept that he was depressed in the latter months of his time in Vietnam and quite anxious. His anxiety has been part of his depressive disorder.
Dr Strauss undertook another assessment of Mr St Clair on 13 March 2012 and provided a report dated that day. He reviewed the reports prepared since his earlier one, including the Writeway reports and discussed issues raised with Mr St Clair who was no longer working. He stated, among other things that:
There appears to be some doubt about whether or not this man did have stressful experiences in Vietnam. He gave me a history when I initially saw him of stressful events, detailed in my first report and I accepted that they had caused him some chronic depression.
However information that you have sent me in your recent correspondence suggests that this man may not have been depressed until several years ago. Whether or not he has been depressed since Vietnam is extremely difficult for me to know with any certainty.
I cannot really comment as to whether or not he did have stressful experiences in Vietnam but if he did not then it may well be that the most appropriate scenario in this case is that this man because of his perfectionist traits and because of his hard work over the years gradually became depressed largely because employment related factors….
Whether he did have the experiences he told me about is difficult for me to know. Certainly if he did have those experiences and they did distress him then his depression is service related….
It is not for a psychiatrist to determine whether in fact an individual suffered stressful events. He told me that he did and it remains a possibility that his time in Vietnam has contributed to his depression and continues to do so.
…
At this stage I accept that he has a dysthymic condition which may be service related but I cannot be absolutely certain as to whether or not it meets the criteria in the relevant Statement of Principles.
He may well have developed this depressive condition in Vietnam but on the other hand information suggests that he is only being diagnosed with depression in recent years. It is impossible for me to know than with any great certainty the onset of his depressive condition.
In oral evidence, Dr Strauss said that a reminder of our mortality can be a frightening experience. He said that Mr St Clair had perfectionist traits and that hard working people can do so in an attempt to ignore their emotional states. Dr Strauss maintained his view that Mr St Clair suffered from dysthymic disorder which was a chronic condition. In relation to clinical onset of the condition, Dr Strauss pointed out the difficulty of establishing this but it was possible it started in Vietnam.
In cross examination, Dr Strauss was told of some of the evidence given by Mrs St Clair and others about the changes in Mr St Clair’s demeanour after Vietnam. Dr Strauss said that this evidence reinforced the diagnosis of dysthymic disorder originating in Vietnam.
In relation to the first step from Deledio, after considering Mr St Clair's evidence, that of his wife and others who knew him before and after his operational service as well as the evidence from the psychiatrists, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr St Clair. Therefore, he satisfies the first step.
In respect of the second step from Deledio, there is a Statement of Principles (SoP) in force under s 196B(2) of the Act. The current SoP is Instrument Nº 27 of 2008 concerning Depressive Disorder. If Mr St Clair does not satisfy Instrument Nº 27 of 2008, the Tribunal is required to consider Instrument N° 17 of 2007 concerning Depressive Disorder which has now been revoked but was in force at the time Mr St Clair made his claim (Repatriation Commission v Gorton (2001) 110 FCR 32).
There are many possible factors that must as a minimum exist for the reasonable hypothesis to allow an association between the person’s operational service and his current condition. In this case, relevant items in paragraph 6 in Instrument Nº 27 of 2008 concerning Depressive Disorder provides:
(a) for major depressive disorder, recurrent major depressive disorder dysthymic disorder and depressive disorder not otherwise specified:
…
(ii) experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or
(iii) experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder; or
…
(vi) experiencing a category 2 stressor within the one year before the clinical onset of depressive disorder;
…
In paragraph 9 of the SoP:
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties;
In relation to the third step from Deledio the Tribunal takes into account that, in Repatriation Commission v Hill [2002] FCAFC 192, the Federal Court held that the material must raise or point to the hypothesis, which must fit the relevant SoP. In Repatriation Commission v Bey (1997) 79 FCR 364 at 372 -3, the Federal Court held that a reasonable hypothesis involves more than a mere possibility, and is pointed to by the facts, even though not proved upon the balance of probabilities.
Mr St Clair cited incidents which may satisfy factors in paragraph 6 of the relevant SoP. The Tribunal has considered the evidence from Mr St Clair and other lay witnesses as well as the medical evidence and forms the opinion that the hypothesis raised is a reasonable one. Therefore, Mr St Clair satisfies the third step.
In relation to the fourth step from Deledio, the Tribunal must decide whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr St Clair's dysthymic disorder was due to his operational service within the meaning of the Act. It is at this stage that the Tribunal is called upon to make findings of fact. The claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved or the truth of a fact inconsistent with the hypothesis is proved. There are both objective and subjective elements to consider when assessing claims of stressful circumstances (Stoddart v Repatriation Commission (2003) 197 ALR 283).
There is no dispute that, during the period of his operational service, there were some potential threats to Mr St Clair’s safety. He has described a number of events that occurred, and fears he held during his operational service as outlined in the recitation of the evidence. Before deciding if any of those meet the definitions in the SoP, the Tribunal must determine the timing of the clinical onset of his dysthymic disorder.
There is no definition of the term clinical onset in the SoPs or in the Act. In Kaluza v Repatriation Commission [2010] FCA 1244 at [92] and [93], Jacobson J referred to the earlier decision in Lees v Repatriation Commission [2002] FCAFC 398:
The meaning of the expression “clinical onset” was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is a clinical onset of a disease, either:
. when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
. when a finding is made on investigation which is indicative to a doctor that the disease is present.
The definition therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment
Dr Percival, Dr D’Ortenzio and Dr Strauss all gave the opinions that based on the histories they had taken, the clinical onset of his illness occurred during Mr St Clair’s operational service. Mr St Clair’s evidence as well as that of his wife, employer and Mr Pettingill, who knew him before and after his Vietnam service, was also consistent in terms of the behavioural change in him. The Tribunal notes that Mr St Clair’s first psychiatric consultation was in 2007. However, the evidence points to features and symptoms that the disease was present in Vietnam. The Tribunal accepts the psychiatrists’ evidence that it was likely that the onset was during his time in Vietnam. The Tribunal finds that clinical onset of Mr St Clair’s dysthymic disorder was during his operational service.
Mr St Clair’s counsel, Mr Moore, submitted that the visit to Mr Pettingill in Vung Tau hospital resulted in him experiencing a Category 1B stressor, namely a severe traumatic event…(b) viewing corpses or critically injured casualties as an eyewitness. Mr St Clair recounted seeing not only Mr Pettingill who had been injured in a grenade attack but also other patients who had severe injuries. This included a burns victim with facial injuries. Mr Pettingill confirmed the existence of critically injured persons visible to him including a burns victim with a clear dressing and another who had lost his jaw. This was also in the context of Mr Pettingill having been injured in circumstances that were similar to those in which Mr St Clair worked, namely work in villages outside the base.
Dr Strauss described Mr St Clair’s sensitivity in his reports and oral evidence. This impression was reinforced by Mr St Clair’s evidence. Mr Moore described him as having an egg shell skull, a term commonly used in legal circles to illustrate that one must take a person as he is. He submitted that what might not have been a severe traumatic event for others was nonetheless such for Mr St Clair.
Mr Rudge, for the Commission, submitted that Mr St Clair’s situation did not meet requirements if one took the five examples of the category 1B stressors in context. He stated that in the other four examples of category 1B stressors, there was an immediacy to the experience. He submitted that Mr St Clair’s visit to Mr Pettingill was not immediately after Mr Pettingill’s injury or after the injuries incurred by the other patients. Therefore there was not the horrible immediacy when viewing victims straight after an incident.
Mr Moore disagreed with the Commission’s stance. Mr St Clair had seen the severely injured patients with his own eyes. Mr St Clair saw Mr Pettingill, and the other critically injured patients, with the eyes of a person who could have been in their shoes. Mr Pettingill, like Mr St Clair, worked in Vietnamese villages outside the base. Mr Pettingill was having lunch when the grenade was thrown by an unlikely source. Mr St Clair had no knowledge of how severe Mr Pettingill’s injuries were at the time of the visit, given Mr Pettingill would still have been under the influence of strong medication. Mr St Clair has given evidence of the horror he still experiences when thinking back to what he saw in the hospital.
The Tribunal does not accept Mr Rudge’s argument that the observer must see the critically injured person immediately after the injury for this provision to fit with the other four in the definition. The issue in relation to being an eye witness appears to the Tribunal to concern the person seeing the injured with his/her own eyes rather than viewing the dead or injured in photographs or newspapers.
Many people who visited patients in hospital while on operational service would not have had the reaction that Mr St Clair had to seeing the injured patients. However, the Tribunal must look at both the objective and subjective into account. Mr St Clair’s background and state of mind are relevant to the Tribunal’s findings. If the Tribunal were looking at the balance of probabilities it may not have made the same finding it will with step four of Deledio.
The Tribunal is satisfied that when visiting Mr Pettingill in hospital Mr St Clair saw patients that were critically injured, accordingly Mr St Clair experienced a category 1B stressor as defined in the relevant SoP. The Tribunal is not satisfied, beyond reasonable doubt, that Mr St Clair’s dysthymic disorder is not war caused given the experience of a category 1B stressor which met factor 6(a)(iii) of the relevant SoP. Given this finding, there is no need to evaluate the other incidents Mr St Clair cited as stressors.
The Tribunal finds that Mr St Clair meets the requirements of s 120(1) of the Act in relation to dysthymic disorder.
ARE HAEMORRHOIDS WAR-CAUSED?
The Commission accepts that Mr St Clair has suffered from haemorrhoids and had an operation to ameliorate the condition in 1998. However, it does not accept that the condition arises out of Mr St Clair’s operational service.
The relevant instrument for a war-caused condition of haemorrhoids is Instrument No 41 of 2008. At the time of his claim, Instrument No. 26 of 2004 was the relevant SoP but the only applicable factors relevant to Mr St Clair are worded identically in both.
The factor that must exist related to Mr St Clair’s operational service is found in paragraph 6 of the current SoP and paragraph 5 of the earlier SoP, namely :
(b) straining at stool due to constipation or diarrhoea, within the two weeks before the clinical onset of haemorrhoids…
In a written statement provided to the VRB, Mr St Clair notes about the condition state:
The last few months in Vietnam straining at stool occurred with lengthening periods prior to the onset of Haemorrhoids in approximately 1972.
In 1981/82 I attended my then local GP Dr Cole…for a diagnosis and referral to a specialist.
In 1997, I arranged through my local GP Dr M McDonald to see a specialist for an operation
…
Onset – I had a varied diet before my tour of Vietnam and had never suffered from non regularity or constipation. This changed significantly, during my time in Vietnam, when it became difficult, for me, to eat or complete a meal. I found that my toilet habits became less regular. I would miss at least a day or two. This resulted in longer than normal periods of time when having a bowel motion and with resultant straining occurring.
The onset of Hemorrhoids commenced just after my time in the army of which I badly suffered with for many years..
This operation has in the majority been successful, where I now have only minor discomfort.
…
I also recognize with hindsight that it would have been an advantage if my irregularity and straining was reported to the MO at the time. But being young and knowing no better, I did not think of this as being a problem in the future.
In oral evidence, Mr St Clair described the difficulties he faced with toileting in Vietnam. He said that he drank flavoured milk in preference to the often non-edible meals provided. He said he was too embarrassed to report the bowel movements when he had medicals during and after operational service.
The clinical notes of Dr M J MacDonald, general practitioner, cover the period from January 1992 to May 2010. The notes indicate that Mr St Clair had a haemorrhoidectomy in 1998. The notes include a letter from W J Hanna, surgeon, to Dr MacDonald dated 21 April 1997 advising he had put Mr St Clair on a waiting list for surgery:
Thank you for referring this gentleman… He has a history of 20 years since he first developed haemorrhoids. They have been uncomfortable, they have bled from time to time bright bleeding. He tends to be a little bit constipated but there is no significant change in bowel habit recently. There is no family history of any bowel cancer.
When I examined him he looked generally well. Abdominal examination was normal. On rectal examination he certainly has external signs of haemorrhoids on straining and even without it…
Mr St Clair’s discharge records on leaving the army some months after his return from Vietnam do not indicate that he had any trouble relevant to his haemorrhoidal condition.
In relation to the first step from Deledio, after considering Mr St Clair's evidence and the medical evidence about haemorrhoids, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr St Clair. Therefore, he satisfies the first step.
In respect of the second step from Deledio, there is an SoP in force under s 196B(2) of the Act. The current SoP is Instrument Nº 41 of 2008 concerning haemorrhoids. The SoP at time of claim was No. 26 of 2004. Mr St Clair satisfies the second step.
In relation to the third step from Deledio, Mr St Clair indicated that he strained at stool and later developed haemorrhoids. There is a suggestion that he may meet paragraph 6(b) of the current SoP and 5(b) of the earlier SoP. There is evidence from Mr St Clair that links his operational service with haemorrhoids. Therefore, Mr St Clair satisfies the third step.
In relation to the fourth step from Deledio, the Tribunal must decide whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr St Clair's haemorrhoids with his operational service.
Mr St Clair recalls problems during his operational service with his bowel habits and links those issues to his diet whilst in Vietnam. He indicated that he did not face any problems prior to overseas service. The Tribunal accepts that may well have been the case. However, the problem in relation to this condition is that the only factor that is available to him is one linking straining at stool due to constipation within two weeks before the clinical onset of haemorrhoids.
There is no evidence that clinical onset of haemorrhoids was within two weeks of his operational service. Consequently, the Tribunal is satisfied beyond reasonable doubt that there is no causal connection between Mr St Clair's Haemorrhoids and his operational service. Therefore, the hypothesis cannot be sustained. It follows that the fourth step from Deledio is not satisfied.
The Tribunal affirms the decision under review concerning haemorrhoids.
DECISION
The Tribunal sets aside the decision under review concerning the applicant’s dysthymic disorder and substitutes a decision that the condition in war-caused. The Tribunal affirms the decision under review concerning haemorrhoids. The Tribunal remits the application for calculation of the applicable rate of pension.
I certify that the preceding 85 (eighty -five) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member. ....................[sgd]....................................................
Administrative Assistant - Legal
Dated 21 December 2012
Dates of hearing 7 December 2011, 23 August 2012, 5 September 2012 Counsel for the Applicant Mr G Moore Solicitors for the Applicant Peter J Liefman Counsel for the Respondent Mr G Purcell (7 December 2011) Advocate for the Respondent Mr K Rudge (later dates) Solicitors for the Respondent Advocacy Section, Department of Veterans' Affairs
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