Robert McKenna and Repatriation Commission - [2014] AATA 56

[2014] AATA 56

Division VETERANS' APPEALS DIVISION

File Number(s)

2011/1631

Re

Robert McKenna

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Ms A F Cunningham (Senior Member)

Date 6 February 2014

Place Hobart
The decision of the Tribunal is to:

(1) Affirm that part of the decision of the VRB which found that the applicant’s PTSD and erectile dysfunction are war-caused and that his alcohol dependence is not war- caused;

(2) Set aside that part of the decision of the VRB which found that the applicant’s depressive disorder was war-caused and substitute it with a decision that the applicant’s depressive disorder is not war-caused;

(3) Remit the matter to the Repatriation Commission for assessment of rate of pension in accordance with these findings.

[Sgd Ms A F Cunningham]
Ms A F Cunningham (Senior Member)
VETERANS’ AFFAIRS – pension - 12 months operational service in Vietnam – claims for PTSD, alcohol dependence, depressive disorder, erectile dysfunction – whether war-caused – experience of category 1A and 1B stressors – decision under review varied
Veterans’ Entitlements Act 1986, ss 9(1), 13(1), 120(1), (3), (4), (5) (6), 120A, 196A, 196B
Statement of Principles concerning Posttraumatic Stress Disorder No. 5 of 2008
Statement of Principles concerning Alcohol Dependence and Alcohol Abuse No. 1 of 2009
Statement of Principles concerning Depressive Disorder No. 27 of 2008
Statement of Principles concerning Erectile Dysfunction No. 43 of 2013.
Repatriation Commission v Bawden [2012] FCAFC 176
Kaluza v Repatriation Commission [2013] AATA 424
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
Ms A F Cunningham (Senior Member)
6 February 2014

At the age of 21 years, the applicant, Robert McKenna joined the Australian Army and served in Vietnam between 8 January 1968 and 7 January 1969 as a corporal in the RAAOC, ordinance depot. He was also President in charge of the “wet canteen”. Many years later Mr McKenna lodged claims for a pension on the basis that a number of his diagnosed medical conditions were related to his service.
In 2004 the Repatriation Commission accepted that Mr McKenna’s bilateral sensorineural hearing loss was related to service but rejected his claims for depressive disorder, alcohol dependence or alcohol abuse and psoriasis. In 2009 the Veterans Review Board (VRB) accepted Mr McKenna’s claims for posttraumatic stress disorder, depressive disorder and erectile dysfunction but affirmed the Commission’s decision in relation to alcohol dependence. Mr McKenna has appealed against the Board’s decision which found that his alcohol dependence was not war caused. The respondent has appealed that part of the Board’s decision which found that Mr McKenna’s posttraumatic stress disorder, depressive disorder and erectile dysfunction were war-caused.
ISSUES
The issues for the Tribunal to determine are firstly, the nature of the conditions suffered by Mr McKenna and secondly, whether any or all of the conditions were war-caused. The conditions that are the subject of this appeal are posttraumatic stress disorder (PTSD), depressive disorder, alcohol dependence and erectile dysfunction. Each of the conditions has been diagnosed by a medical practitioner…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Robert McKenna and Repatriation Commission

Details

AGLC: Robert McKenna and Repatriation Commission [2014] AATA 56
Case: [2014] AATA 56
Decision Date: 6 February 2014

CaseChat Overview and Summary

The case between Robert McKenna and the Repatriation Commission involved a dispute over the causation of certain medical conditions and whether they were attributable to McKenna's service in the Vietnam War. The matter was heard by the Tribunal, which had to determine whether McKenna's post-traumatic stress disorder (PTSD), erectile dysfunction, alcohol dependence, and depressive disorder were war-caused within the meaning of section 9 of the Veterans' Entitlements Act (VE Act). The Tribunal was also tasked with assessing the adequacy of hospital resources and the potential involvement of soldiers in assisting with the transportation of wounded soldiers.

The central legal issue was the interpretation and application of section 9 of the VE Act to determine whether the medical conditions in question were caused by McKenna's war service. This involved a detailed examination of the evidence presented by both parties regarding the circumstances of McKenna's service, the conditions under which he served, and the onset and progression of his medical conditions. The Tribunal had to weigh the credibility of witnesses, including McKenna himself, and the documentary and photographic evidence provided.

The Tribunal concluded that McKenna's PTSD and erectile dysfunction were war-caused, affirming the decision of the Veterans' Review Board (VRB) on these points. However, it found that his alcohol dependence and depressive disorder were not war-caused, reversing the VRB's decision on these conditions. The Tribunal accepted that there were occasions when soldiers were likely requested to assist in carrying stretchers from the helipad to the hospital, supporting McKenna's claim regarding the accessibility between the helipad and 2 A0D. The Tribunal placed less weight on the respondent's evidence regarding restricted access and modifications to the base that post-dated the period in question.

The Tribunal's decision was to affirm the VRB's finding on PTSD and erectile dysfunction, set aside the finding on depressive disorder, and remit the matter to the Repatriation Commission for reassessment of the pension rate based on the new findings. This decision effectively altered the basis for the pension assessment to align with the Tribunal's conclusions on the causation of McKenna's conditions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In accordance with its findings as outlined above, the Tribunal concludes that Mr McKenna’s PTSD and erectile dysfunction are war-caused within the meaning of section 9 of the VE Act and that his alcohol dependence and depressive disorder are not war-caused.DECISION The decision of the Tribunal is to:(1) Affirm that part of the decision of the VRB which found that the applicant’s PTSD and erectile dysfunction are war-caused and that his alcohol dependence is not war- caused;(2) Set aside that part of the decision of the VRB which found that the applicant’s depressive disorder was war-caused and substitute it with a decision that the applicant’s depressive disorder is not war-caused;(3) Remit the matter to the Repatriation Commission for assessment of rate of pension in accordance with these findings.

Ratio Decidendi

Legal Principle Established

It was the evidence of witnesses called on behalf of the respondent that there were sufficient staff attached to the hospital and that there was no need to call for outside assistance. On the other hand there were a number of witnesses called on behalf of the applicant who attested to the fact that they either personally assisted in the carrying of stretchers bearing wounded soldiers from the helipad to the hospital or were aware that this had occurred on occasions. Mr Middleton said that it was common knowledge amongst the diggers and that the army officers would not necessarily be aware of what was occurring out in the field. Mr Middleton claimed that the photographs that he took at the time depicted hospital orderly staff wearing light blue shirts, and also soldiers who were likely to be from 2 AOD, assisting in the carrying of stretchers or standing nearby ready to assist.CONSIDERATION Whilst there is no official written record to confirm that on occasions, soldiers from 2 AOD were requested to assist in the transportation of wounded soldiers from the helipad to the hospital, one plausible explanation is that the requests were not done on an official basis but in circumstances where a situation for additional assistance arose from time to time. It is not contended by Mr McKenna that requests for assistance were a regular occurrence. He claims that he was requested to assist on two occasions and only has a clear recollection of the first occasion which occurred when he was visiting Tom Perks’ friend in hospital. Mr McKenna recalled carrying a badly injured and distressed soldier who had part of his leg missing. This incident occurred in late January not long after his arrival in Vietnam and coincided with the TET Offensive which resulted in a large number of casualties. This is confirmed by the battle casualty figures for the 1968/69 period. It is therefore likely that there was more than one helicopter bringing wounded casualties to the hospital at the time. The Tribunal heard that many of the Vietnamese had left the base to be with their families for the New Year celebrations and that as a result there was a shortage of manpower. The Tribunal considers that it is therefore likely that there were occasions when soldiers may have been requested to assist with the carrying of stretchers from the helipad. The Tribunal accepts the evidence led on behalf of the applicant in relation to the access between the helipad and 2 A0D. This evidence was given by soldiers who were present at the relevant time and confirmed by photographic evidence. The evidence presented on behalf of the respondent regarding the restricted access post-dated the period in question. The Tribunal places little weight on the written statement of Mr McNaughton, who was not present to give oral evidence and was not at Vung Tau at the relevant time. The Tribunal accepts that the base was being constantly modified and that the perimeter fencing was installed after the period in question.

Division	VETERANS' APPEALS DIVISION
File Number(s)	2011/1631
Re	Robert McKenna
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Ms A F Cunningham (Senior Member)
Date	6 February 2014
Place	Hobart