Robert McKenna and Repatriation Commission
[2014] AATA 56
•6 February 2014
[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 as being suffered by Mr McKenna. It is contended by the respondent however, that the diagnosis of PTSD was made on the basis of the history provided by Mr McKenna to the medical practitioners and that on balance, the evidence does not support Mr McKenna’s account of the incidents that he claims gave rise to his condition.
STATUTORY FRAMEWORK
Section 13(1) of the Veterans’ Entitlements Act 1986 (the VE Act) provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is subject to the Act, liable to pay a pension by way of compensation to the veteran. Section 9(1) provides that a disease is taken to be war-caused where the disease contracted by the veteran resulted from an occurrence that happened while the veteran was rendering operational service.
It is common ground that Mr McKenna’s service in Vietnam constituted “operational service” for the purposes of the VE Act. The relevant standard of proof provisions are contained in section 120 which relevantly provide as follows:
“(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran ... relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease ... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
...
(3) In applying subsection (1) ... in respect of the incapacity of a person from injury or disease ... related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury...; [or]
(b) that the disease was a war-caused disease ...;
...
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
(4) Except in making a determination to which subsection (1) ... applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act ... including the assessment or re-assessment of the rate of a pension granted under Part II ... , decide the matter to its reasonable satisfaction.
(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a) an injury suffered by a person is a war-caused injury ...;
(b) a disease contracted by a person is a war-caused disease ...; [or]
...
(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application”.
Of relevance are the provisions of section 120A and in particular subsection (3) with respect to operational service which provides:
“For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, [or] a disease contracted by a person ... with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) ...
...
that upholds the hypothesis”.
Section 196A of the VE Act establishes the Repatriation Medical Authority (the Authority) and section 196B makes provision for the Authority to determine a Statement of Principles applicable to cases of operational war-service and service other than operational service.
It is accepted that the Statements of Principles relevant to this appeal are 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 and Statement of Principles concerning Erectile Dysfunction No. 43 of 2013.
WAR-CAUSED POSTTRAUMATIC STRESS DISORDER
Clause 3(b) of the Statement of Principles concerning posttraumatic stress disorder defines the condition as a psychiatric condition meeting a number of diagnostic criteria derived from DSM–IV-TR. Clause 9 defines this term to mean “the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000”.
Criterion (A) of the diagnostic criteria for PTSD is that:
“(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror; …”
Clause 6 contains a list of the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting PTSD with the circumstances of a person’s operational service. The factors relevant to the current appeal are:
(A)experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or
(B)experiencing a category 1B stressor before the clinical onset of posttraumatic disorder; or
A category 1A stressor is defined in clause 9 as:
“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 is defined in clause 9 as:
“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”.…”
There are two events that have been identified by the applicant as satisfying the criteria for both a category 1A stressor and a category 1B stressor. The first involves an incident where Mr McKenna claims that he was threatened with a rifle by a fellow soldier which would satisfy clause 9(a) and (c) for a category 1A stressor. Mr McKenna further contends that on two occasions he assisted with the movement of stretchers carrying critically injured soldiers from the Vampire helicopter pad to the hospital which would satisfy the provisions of clause 9(a) and (b) for a category 1B stressor.
With respect to the first claimed incident it is contended by the respondent that it did not occur in the manner described by Mr McKenna such that he did not experience a life-threatening event and nor was he threatened with a weapon such as to constitute a category 1A stressor as defined. The respondent disputes that Mr McKenna was personally involved in transporting stretchers bearing wounded soldiers from the helicopter pad to the hospital and relies on the evidence from witnesses called by the respondent. It is contended that a diagnosis of PTSD cannot be maintained in the absence of the Tribunal being reasonably satisfied that Mr McKenna experienced either a category 1A stressor or a category 1B stressor as the terms are defined in the Statement of Principles.
Following the decision of the Full Court of the Federal Court in Repatriation Commission v Bawden [2012] FCAFC 176, it has now been clearly established that it is necessary to determine as an anterior question on the balance of probabilities, the diagnosis of the disease from which the veteran claims to be suffering before the Tribunal can proceed to consider whether the condition was war-caused.
At paragraph 42 of the Bawden decision the Full Court stated:
“The four step process adumbrated in Deledio is established by ss 120(3), 120A(3), 120B(3) and 196(B)(2) and (3) of the Act. That process is concerned with the issue whether incapacity from a disease or injury found to exist is war-caused: it is not concerned with the issue whether the disease or injury occurred. This anterior question is governed by s 120(4) of the Act. The obligation of the decision-maker was to determine Mr Bawden’s claim by reference to an allegation of PTSD. Diagnosis is a process which necessarily involves examining a collection of symptoms in order to identify a disease in accordance with diagnostic criteria. The Tribunal, guided by the relevant diagnostic criteria set out in the DSM-IV, rejected a diagnosis of PTSD because it was not reasonably satisfied as a matter of fact that Mr Bawden had been exposed to a traumatic event”.
And further at paragraph 43:
“A decision-maker is first obliged to examine the collection of symptoms of which the claimant complains to determine whether, according to the standard of “reasonable satisfaction” set by s 120(4), they constitute a disease for the purposes of entitling a veteran to a pension. The decision-maker’s second task is to determine the aetiology of the disease by applying the Deledio process, which involves ascertaining whether there is a hypothesis, testing that hypothesis against the relevant Statement of Principles and turning to the facts to determine whether that hypothesis is excluded beyond reasonable doubt”.
Also of relevance is paragraph 44 which reads:
“It may be accepted that, while a veteran must establish on the balance of probabilities that he or she suffers from “incapacity from injury or disease”, the veteran is not obliged to attach a label to the injury or the disease from which the claimed incapacity is alleged to result. That having been said, where the disease propounded by the veteran as the cause of his or her incapacity is asserted to be PTSD, the issue arising from that assertion falls to be determined under s 120(4) of the Act because it is not a determination to which s 120(1) applies. That is because a traumatic event is necessary for a diagnosis of PTSD at a medical level. In Repatriation Commission v Warren [2007] FCA 866; (2007) 95 ALD 606 at [24]- [25], Kiefel J explained the two-stage process, and the legitimate use of the DSM-IV at the diagnosis stage:
[24] The function of the SoP, in general terms, is to identify the minimum factors which must be present in the circumstances of the veteran’s case, to provide the necessary linkage between the disease suffered and operational service. The factors necessarily refer to the disorder in question. The principal purpose of the definition of each of PTSD and alcohol dependence is to permit a determination as to whether the SoP applies to the condition as found by the Tribunal, presumably upon the basis of a clinical diagnosis. The diagnostic criteria for the disorders in the SoP are said to be “those specified in DSM-IV, and are as follows”. The criteria are intended as part of the definition for the purpose of the application of the SoP.
[25] The anterior, or threshold, question for the Tribunal is whether the veteran suffers from the disease as claimed. It is a distinct and separate statutory question, in the nature of a precondition to any entitlement to a pension. There is no provision of the VEA which expressly requires the Tribunal to have regard to the SoP criteria in determining this question. The requirement that the Tribunal be reasonably satisfied that the veteran suffers from the claimed disease will usually require medical opinion. A clinical diagnosis of a condition classified under DSM-IV would necessarily have regard to that manual and the criteria provided by it”.
At paragraph 47 the Full Court stated that:
“PTSD can only be diagnosed as an illness or disease in terms of a traumatic event”.
Accordingly the Tribunal must firstly decide whether it can be reasonably satisfied in accordance with the standard of proof provisions of section 120(4) that any or all of the events that Mr McKenna described constitute a traumatic event within the meaning of the Statement of Principles.
CARRYING WOUNDED SOLDIERS
In his written Statement of Evidence Mr McKenna nominated two significant and distressing events that occurred whilst he was in Vietnam. He referred to two occasions when he carried seriously injured soldiers from helicopters and another event when his life was threatened by another soldier with a rifle (the Golding incident). He claims that the helicopter incidents had a significant impact upon him and that seeing seriously wounded soldiers on stretchers was very disturbing. Mr McKenna claims to have a clear memory of carrying wounded soldiers on one occasion and a patchy memory of a second occasion.
Mr McKenna stated that the first occasion occurred around the time of the TET Offensive which was in either late January or February 1968. On this occasion Mr McKenna was at the hospital visiting a friend of Tom Perks who was with him at the time. He recalls that it was in the late afternoon after his work had finished for the day. Mr McKenna stated that “a medical or hospital person” approached Tom and himself and asked them to “assist with the unloading of the choppers”. They followed this person to the Vampire helicopter pad where a helicopter had landed. They were directed to carry a stretcher with a wounded soldier into the hospital at which point the hospital staff took over. He recalls other soldiers and hospital staff being present at the helicopter pad. He identified the soldiers as those who were wearing shorts and no tops. Mr McKenna recalls that the soldier who they carried into the hospital was of similar age to himself and was badly injured. He had lost the lower part of his leg which was covered with a blood soaked bandage. Mr McKenna stated that he recalls looking at the soldier who was groaning at the time, obviously in a lot of pain.
Although he had seen similar things on television, Mr McKenna said that he had never witnessed an injury like this before and found it very disturbing. In his written statement Mr McKenna said that after leaving the hospital he believed that he and Tom went to the canteen and started drinking beers.
Mr McKenna’s memory of the second occasion was that it occurred later during his service and was around the time of the Nui Dat Offensive. He recalls successive helicopters landing whilst he was working at the traffic depot. Although his memory is very patchy, he believes that he was asked to go to the hospital to help. All he remembers is that he saw a wounded soldier on a stretcher with part of his arm missing which was covered with a blood soaked bandage. He remembers other wounded soldiers being carried on stretchers but has no particular memory of any other injuries or wounds. He did recall that after the event he went with other soldiers to drink at the wet canteen where they discussed the battle which had been a big event and was particularly traumatic for Mr McKenna. Mr McKenna stated that the memories of these wounded soldiers have remained with him and he has had disturbing nightmares of wounded soldiers, sometimes with limbs missing but not necessarily on stretchers. He said that viewing television programmes of hospitals or emergency wards with injured people on stretchers can trigger memories of the wounded soldiers in Vietnam.
A copy of the transcript of Mr McKenna’s evidence before the VRB dated 17 February 2011 was tendered in evidence. Mr McKenna is recorded as having stated that he had been “assigned to go and help out”. In his evidence before the Tribunal Mr McKenna said that he meant that they had been “asked to assist’ by a higher ranking official. A number of witnesses were called on the applicant’s behalf who confirmed Mr McKenna’s account that soldiers, other than hospital staff were on occasions asked and did assist in the carrying of wounded soldiers from the Vampire helipad into the hospital.
Ronald Cross, who served in the New Zealand Army between 1955 and 1983 and retired as a Lieutenant Colonel, was seconded as General Stores Officer at the Vung Tau Depot, known as 2 AOD between February 1967 and February 1968. He stated that he was often notified that a “Kiwi casualty” was being brought in by helicopter and that he had assisted to carry wounded soldiers on stretchers into the hospital. Mr Cross said that there was no difficulty in accessing the helicopter pad or the hospital for whilst there was a barbed wire fence between 2 AOD and the hospital, he considered that its purpose was to define the perimeter between the two units and not prevent access. There was at least one gap in the fence which he said was used to transit between one unit and another.
Mr Cross recalled a particular occasion when he assisted to carry a wounded Kiwi soldier and an Australian soldier on stretchers because there were insufficient hospital staff to move all of the casualties into the hospital. Mr Cross said that he did not however recall seeing any of the Australian soldiers from 2 AOD actually carrying wounded soldiers on stretchers but based on his experience as a stores officer in the unit, he was not surprised to learn that Mr McKenna claims to have done so particularly as the 2 AOD soldiers were located closest to the hospital.
Robert McEwan was a driver based at the Logistic Support Base at Vung Tau. Mr McEwan recalls being asked on at least two occasions to assist in the unloading of “dust offs”. “Dustoffs” was the term used to refer to the unloading of wounded soldiers from helicopters landing on the Vampire pad. Mr McEwan stated that he had unloaded one soldier who was very badly wounded and recalls seeing another soldier being carried in by others on two stretchers which contained various body parts. He recalls seeing a lot of blood and hearing men groaning and crying on account of their injuries. Mr McEwan took a number of photographs of the “dustoffs”.
Copies of several photographs taken by Stanley Middleton, who also gave oral evidence before the Tribunal, were tendered in evidence. Mr Middleton served in Vietnam between August 1967 and May 1968 at 2 AOD. Attached to his written statement of evidence was an aerial photograph of the base which depicted the geographic relationship between the traffic shed where Mr McKenna worked and the Vampire helipad. Mr Middleton stated that although he worked further away from the helipad than Mr McKenna, he is sure that he had seen soldiers unloading stretchers from the helicopters at the Vampire pad. He referred to one photograph that he said showed soldiers without shirts who he believes were attached to his unit, 2 AOD. He said that “soldiers were sent to the helipad to be ready to assist if needed after major military actions”. He referred to a photograph where one of the stretcher bearers was wearing a light blue shirt and stated that it was his recollection that soldiers who worked in the hospital wore the light blue shirts. Mr Middleton referred to one of the photographs which he said showed a number of soldiers from Mr Middleton’s unit standing to one side of the Vampire helipad watching and ready to help if needed.
Mr Middleton disputed the statement in the Writeway Report tendered in evidence, appearing at paragraph 10 on page 8 which claimed that access to the 2 AOD area was by way of the boom gate manned by sentries and that all entries and exits of vehicles were recorded. Further that there was no direct or easy access to Vampire pad from the 2 A0D unit area. Mr Middleton claimed that the wire fence did not extend all of the way around the base or even along the entire extent of the roadway between 2 AOD and the hospital. He said that the wire fence only ran to the boom gate and that when he was there, there was no fence at all adjacent to the HQ area. Mr Middleton attached a photograph taken by a fellow soldier, Gary Dobson during their period of service which clearly showed where the fence stopped approximately one metre short of the boom gate. It was Mr Middleton’s evidence that it was an easy walk of only 20 metres through the gap in the fence from 2 AOD to the helipad pad. He said that often the boom gate was not manned during the day.
Mr Middleton said that it was common knowledge amongst the soldiers that they would help to unload the stretchers if called upon to do so. He resented the claims from army officers who disputed that the soldiers had helped to carry the stretchers and said that they were often in their offices and did not know what was going on outside.
Michael Miller who was also posted to Vietnam in February 1968 and in the same unit as Mr McKenna, said that he could recall watching helicopters arriving at the Vampire helicopter pad and hospital orderlies who wore light blue tops and khaki shorts, as well as soldiers wearing khaki shorts and no shirts, assisting with the unloading of the helicopters.
Although he could not be 100% certain, Ronald Ryan recalled that people other than hospital staff unloaded the choppers on the helipad depending on how busy it was at the time. It was his recollection that soldiers performed duties all over the place as needed. Attached to his proof of evidence were photographs that he had taken from the end of the traffic shed which he said depicted soldiers carrying stretchers from the helicopter. Mr Ryan served in Vietnam between 1967 and 1968 and was in the same unit, 2 AOD as Mr McKenna.
Peter Edwards served in Vietnam from January 1968 until December 1968 as a private with 2 AOD. Although he did not spend much time on the base as he was working principally at the US Airbase, he said that he had a clear memory of being told by other soldiers in 2 AOD that they had helped unload wounded soldiers from helicopters. He believes he was told this three or four times during the year whilst in Vietnam but does not recall by which soldiers at 2 AOD.
It was strongly disputed by the respondent that any soldiers during this period of time at 2 AOD would have been called upon to assist the unloading of wounded soldiers from the helicopters landing on the Vampire pad. The evidence led on behalf of the respondent was that there were ample staff attached to the hospital to assist with the number of casualties arriving by helicopter at the Vampire pad and that there was no need to call upon other soldiers for this purpose.
A report from Writeway Research Service Proprietary Limited dated 4 November 2013 prepared by Warren Barsley was tendered in evidence. Mr Barsley gave oral evidence before the Tribunal. It was his evidence that none of the documentary material that he had accessed contained any information with respect to either of the traumatic incidents referred to by Mr McKenna. Nor did any of the persons who he had consulted regarding Mr McKenna’s period of service in Vietnam confirm that soldiers other than hospital personnel were involved in the carrying of stretchers from the helicopters landing on the Vampire helipad.
Statements in the Writeway Report included that of Lieutenant-Colonel Morris Ralph who said that the field hospitals own teams handled casualty arrivals and required no help from 2 AOD. Lieutenant-Colonel Peter Bridge had stated that he did not recall hearing that soldiers had helped out at the helipad at the hospital. Major David Roubin could not recall any of the AOD staff ever being used in this manner. Major Brian Roberts advised that he had no recollection of an event where soldiers provided assistance to unload wounded from helicopters to the hospital.
Under cross-examination Mr Barsley agreed that he had only interviewed senior officers in relation to the claimed incidents and no ordinary soldiers, privates or corporals who were present at the Vung Tau base during Mr McKenna’s period of service.
Mr Barsley maintained that his investigations indicated that access between the field hospital and 2 AOD was restricted because of the perimeter fencing and the boom gate which was manned at all times to control traffic in and out of the base. However examination of the photographs and map tendered by the respondent indicated that they post-dated Mr McKenna’s period of service in Vietnam and were inconsistent with the photographs taken by Mr Dobson in March 1968 which showed a 1 metre gap between the end of the fence and the boom gate.
The information contained in the Writeway Report dated 8 February 2012 stated that the Vampire pad was located just 50 metres from the hospital and that access was via a concrete walkway fitted with an overhead roof for protection from monsoonal weather. Two photographs were included in the Report showing the covered walkway. The evidence from soldiers who were present during the relevant period was that the covered walkway was installed at a later time. Paragraph 22 of the Report describes the procedure for transporting patients or victims from the dustoff helicopters. The Report states that there was limited opportunity to view the arrival of battle casualties at the Vampire pad from surrounding units. The photograph included in the Report of battle casualties being offloaded by stretcher parties, depicted medical orderlies wearing green surgical shirts and did not include any soldiers without shirts. It was contended that only one helicopter was able to arrive at a time and that there were always sufficient hospital staff available to unload each stretcher.
The report concludes by stating that:
“… None of the former 2 AOD officers and SNCO who served in the unit at the same time as CPL McKenna and CPL Cooper have any knowledge of Ordnance Corps soldiers being employed at the neighbouring 1 Aust Fd Hosp assisting to off load battle casualties from ‘DUSTOFF’ aircraft at Vampire Pad. The area around Vampire helipad was a secure fenced off area and was not directly accessible from the 2 AOD unit lines. The helpad was a dangerous place given the flying debris resulting from the downwash of the main rotor blades on landing and take-off, and the fact that the aircrafts engine was not turned off when discharging battle casualties or patient transfers. Therefore reception activities at Vampire Pad were oversighted by the hospital’s RSM and Ward master”.
Tendered in evidence was a statement of Michael Naughton, Commanding Officer of 1st Australian Field Hospital at Vung Tau during mid-1969 to late 1970 with respect to the transportation procedure for battle casualties. Mr Naughton stated that:
“During the period of my command personnel from neighbouring units were not called on to assist in the task of transferring wounded soldiers from the heliambulance to the Triage Area where the casualties were assessed, resuscitated and prepared for surgery. As indicated this task was performed by members of 1AFH under supervision of the Wardmaster. While this task was simple enough it had to be streamlined and 1AFH personnel were adept in this role. When the casualties were unloaded there was a resupply of stretchers and any other equipment that the crew of the heliambulance required. When this was achieved the helicopter left VAMPIRE to attend other missions and to make way for other incoming helicopters. The process was usually completed in a matter of minutes”.
Lieutenant-Colonel Geoffrey Barlow was interviewed by Mr Barsley by telephone who included the following statement in the Writeway Research Report:
“No 2 AOD, or any other personnel, other than 1 AFH personnel, persisted with the unloading of helicopters as they were not needed and that there would have been a risk in using untrained personnel for this task”.
Mr Barlow was a pharmacist with the Australian Army and worked at the Field Hospital between 18 December 1967 and 29 October 1968. Mr Barlow gave oral evidence before the Tribunal and stated that it was his recollection that there were sufficient off duty medical personnel to assist in any transfer of wounded soldiers from the helipad to the hospital and that he had not witnessed any soldiers being called upon to assist. Under cross-examination he agreed that he had never been physically present during the unloading of the wounded soldiers from the helicopters.
Lieutenant-Colonel Maurice Ralph who was the OC of both the Ordinance Depot and 2 AOD between 1 April 1967 and 25 March 1968 is recorded in the Writeway Research Report as having stated:
“The Field Hospital’s own teams handled casualty arrivals and required no help from 2 AOD”.
Mr Ralph also gave oral evidence before the Tribunal and stated that he had no recollection of anyone from the Field Hospital approaching his unit for assistance in the transfer of casualties from the helipad to the hospital. Nor could Mr Ralph recall any soldiers having been transferred from 2 AOD to work at the hospital. Tendered in evidence were copies of Major Ralph’s Diary Narratives for the months of January and February 1968. Specific reference was made to Major Ralph’s entry for 25 January which recorded that “Lt A T Delaney and 1 OR admitted to hospital” and that on 29 January “Lt Delaney remains located at 8 Fd Amb with 3 ORs”. On 30 January it is recorded that “only 14 Vietnamese at work – situation now critical – troops will have to be rostered for kitchen duty and hygiene”. On 1 February it is recorded “only 17 Vietnamese at work …” and on 2 February “manpower problems being experienced as a result of no civilian labour … three ORs remain located with ALSG Fwd … 3 ORs remain hospitalised …”.
Whilst Mr Ralph said that he had no specific recollection of the manpower shortage in late January 1968, he agreed that it coincided with the Vietnamese New Year celebrations when many Vietnamese would return to their families. It also coincided with the TET Offensive which resulted in a large number of casualties over a period of some weeks. Mr Ralph stated that he was not at Vung Tau in late January but was in Saigon and returned to the base around 2 February. Whilst he had no recollection of soldiers being asked to assist at the helipad, he accepted that it could have occurred without his knowledge.
John Lambie was the Quartermaster of 8 Fd Amb/1 AFH between 25 March 1968 and 26 March 1969. It was Mr Lambie’s responsibility to ensure that sufficient stretchers were available as needed and that any weapons, ammunition and personal effects were removed from the casualties. He is recorded in the Supplementary Writeway Research Report as having said:
“At no time were any personnel, other than hospital personnel, involved in unloading casualties from dust off helicopters.”
Mr Lambie was asked to comment on the photographs that had been taken by Mr Middleton and tendered in evidence and the evidence of other soldiers who said that they had been asked to assist in carrying stretchers from the helipad. Mr Lambie maintained that no soldiers other than hospital staff were involved in unloading the helicopters and commented that any 2 AOD soldiers depicted in the photographs were there to “satisfy their morbid curiosity” rather than to assist in the unloading of the stretchers. He said that the men wearing blue shirts were hospital staff but was not sure about the soldiers wearing to shirts. It was Mr Lambie’s evidence that only one helicopter was able to land at a time although he recalled an occasion when three helicopters landed one after the other but maintained that there were always plenty of hospital staff available to assist in the unloading.
Mr Barsley said that he had accessed official records relating to the period in question namely, Mr McKenna’s period of service in Vietnam. He found no written reference either that soldiers from 2 A0D were requested to assist in the transportation of stretchers from the helipad to the hospital or the incident involving Mr Golding.
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.
Despite some inconsistencies in Mr McKenna’s evidence regarding these events, the Tribunal considers that they are fairly minor inconsistencies and understandable in light of the fact that they occurred over 40 years ago and in stressful and unfamiliar surroundings. The Tribunal found Mr McKenna to be a forthright and generally credible witness and is reasonably satisfied that he was asked to assist in the carrying of wounded soldiers in the manner he described. The witnesses who were called on behalf of the applicant confirmed their evidence under cross-examination that they either personally assisted or understood that on occasions, soldiers from 2 AOD were requested to assist in the transportation of wounded soldiers from the helipad into the hospital. On the other hand although the witnesses called on behalf of the respondent maintained that this did not occur, they agreed that they had no personal knowledge of this occurring and neither were they physically present at the helipad when the wounded soldiers were unloaded. Both Mr Ralph and Mr Lambie conceded that although unlikely, it was possible that it may have occurred.
For all of the above reasons the Tribunal is reasonably satisfied that on at least one occasion Mr McKenna was requested to assist on an unofficial basis in the transportation of a wounded soldier from the Vampire helipad to the hospital triage. Mr McKenna was an impressionable young soldier who had just arrived in a war zone and these incidents understandably had a profound and disturbing impact upon him.
Both of the medical witnesses who were called to give evidence at the Tribunal hearing, namely Dr Collier and Dr Reid, accepted that these incidents constituted a severe traumatic event in the form of experiencing a life-threatening event with respect to the diagnostic criteria derived from DSM-IV for post-traumatic stress disorder.
THE GOLDING INCIDENT
It was Mr McKenna’s evidence that this incident occurred in the latter part of his service in Vietnam around September 1968. Mr McKenna described how he was with fellow soldiers, Ron Golding and John Cooper in their hut which contained six or more rows of single beds, a walkway down the centre and little else. He recalled that Graham Gill and another soldier, Bob Cattana were also present. He believed that the incident occurred after he and John Cooper had locked the canteen for the night.
In his evidence to the Tribunal Mr McKenna said that on entering his hut sometime after work around 4:30 pm, he saw Mr Golding who was reading a letter on his bed. Mr Golding became verbally agitated and together, Mr McKenna and John Cooper approached him and sat with Mr Golding for a while to try and calm him down. Mr McKenna said that he believed that Mr Golding had received a “Dear John letter” from his fiancee earlier in the day which had upset him. It was later that night after the canteen had closed around 10.00 pm, that Mr Golding became extremely upset in the hut, saying that he had had enough of this place and was threatening to kill himself. In an agitated state Mr Golding grabbed his rifle which was alongside his bed, saying that he did not want to live any more. He went outside with his rifle. Out of concern for his welfare, Mr McKenna said that he and Mr Cooper followed him. Mr McKenna managed to get hold of Mr Golding’s rifle and handed it to Graham Gill but Mr Golding was able to grab it back and told Mr Cooper and Mr McKenna to mind their own business. Mr McKenna claims that whilst Mr Golding was pointing his gun at him, he approached him and tried to calm him down. However Mr Golding was very agitated and aggressive and as he moved towards Mr McKenna he placed the gun barrel under Mr McKenna’s chin and threatened to shoot him. Mr McKenna was able to distract Mr Golding and then hit him in the face a couple of times before grabbing him. He managed to get hold of his rifle before a New Zealand sergeant arrived and took Mr Golding away. Mr McKenna said that on the next occasion when he saw Mr Golding in their hut, he was extremely apologetic. Mr McKenna said that Mr Golding was not charged or disciplined for the incident.
Mr McKenna claims that this incident had a profound effect on him as he believed at the time that he could have been killed. He said that he believed that Mr Golding’s rifle was loaded at the time. It was his recollection that Mr Golding had loaded his rifle by reversing the magazine but he did not recall whether he had in fact cocked the rifle ready to fire. Mr McKenna claims that on the evening following this event he got pretty drunk and continued to consume large quantities of alcohol in order to dull his memory of the incident.
There were some variations between Mr McKenna’s oral evidence at the appeal hearing and that provided in his written statement and the evidence given to the VRB as recorded in the transcript. He stated that he was present when Mr Golding read the letter for the first time and when he claimed that he did not want to live any more before grabbing his rifle and going outside. He contended that the incident occurred just after work and that the soldiers’ rifles sat in the hut with their magazines loaded. He did not believe that Mr Golding had actually cocked the rifle.
The evidence led on behalf of the respondent as contained in the Writeway Research Report states that the soldiers’ rifles were not loaded whilst in the hut. The Report included photographs obtained from the Army Infantry Museum at Singleton New South Wales illustrating the configuration of the rifle and magazines. The Report stated that it was common for soldiers to tape their two magazines together back-to-back with one magazine being loaded with 15 live rounds which was then taped over at the top as a safety precaution. In order to load the weapon the dual magazine is taken off the rifle, the PVC tape removed from the other magazine containing the live rounds which was then placed onto the weapon ready to be cocked and thus feeding a round into the chamber ready for firing. The Report goes on to state that the magazine containing the live rounds facing downwards and covered over at the top with black PVC tape would be easily noticed, indicating that the loaded magazine is not fitted to the weapon. This was the configuration and state of readiness of the weapon as claimed by Mr Golding in his statement provided to DVA.
It was Mr McKenna’s evidence that in order to load the rifle, one needed to reverse the magazines which were taped together. He disputed that the live magazines were taped at the top as claimed in the Writeway Report. Mr McKenna explained that by saying that the rifles sat in the hut with the magazines loaded he was not claiming that the rifles were actually loaded. He did believe however, that Mr Golding had reversed the empty magazine with a loaded magazine and that he could have been shot by Mr Golding.
Mr McKenna disputed Mr Golding’s account that Mr Golding became agitated when he believed that one of the soldiers with whom he had been playing cards was cheating and that he threatened to shoot the soldier. A summons was issued to Mr Golding to attend to give evidence in support of his written statement but he was not served. The written statement was not accepted into evidence because Mr Golding was not available for cross-examination.
Mr McKenna’s account of the Golding incident was confirmed by John Cooper, the soldier who was present at the time. Mr Cooper’s statement was prepared prior to the VRB hearing but he was not called to give oral evidence at the appeal hearing as he has since suffered a stroke and has no memory of the incident. In his statement Mr Cooper stated that he and Mr McKenna were both posted to 2 AOD in Vung Tau in early 1968. During the ensuing eight months they became good friends and socialised regularly which included the consumption of significant amounts of alcohol. Mr Cooper’s statement goes on to record two significant events the first of which was the Golding incident where he records that Mr Golding had threatened to kill both of them as well as himself. He stated “Finally we managed to disarm him however the feeling of fear and helplessness when a loaded and cocked SLR is pointed at you with intent has stayed with us both”. Mr Cooper also claimed that along with other members of their unit, they were present on numerous occasions assisting in the unloading of wounded soldiers from helicopters.
In his written statement signed on 17 October 2013, John Meehan stated that he served in the same unit as Mr McKenna in Vietnam and that he recalled hearing about an incident involving Ron Golding and Mr McKenna. He said news of the incident:
“floated around the unit. It was talked about. I heard that a weapon was used open (which we called a “shooter”) to threaten Robert McKenna. It was a long time ago, but I think that I heard that the cause of the incident had been Ron Golding receiving a “Dear John” letter. A “Dear John” letter is a letter from your wife or girlfriend telling you that they have ended the relationship, or something like that. I have no memory of hearing anything about a card game being a cause of the incident.”
Further in his statement Mr Meehan stated that he has a clear memory of speaking to Mr McKenna one night sometime after the incident involving Mr Golding. Mr McKenna seemed to be drinking a great deal of alcohol at the time and he asked why he was drinking so much. Mr McKenna then told him about the:
“… loaded shooter being pointed at him. He told me it affected him. He said it had knocked him about. He said it had made him nervous”.
There was little evidence to contradict Mr McKenna’s account of “the Golding incident” which was confirmed by the evidence of Mr Cooper and Mr Meehan as outlined above. In these circumstances the Tribunal is reasonably satisfied that this incident occurred in the manner described by Mr McKenna.
Both of the medical witnesses called who gave evidence at the appeal hearing accepted that the circumstances of this incident as related by Mr McKenna, met the diagnostic criteria for posttraumatic stress disorder and that Mr McKenna was exposed to a traumatic event being a category 1A stressor by experiencing a life threatening event as well as being threatened with a weapon.
POSTTRAUMATIC STRESS DISORDER DIAGNOSIS
As the Tribunal has found that it is reasonably satisfied that both of the claimed traumatic events occurred, it must now consider whether Mr McKenna suffered from the claimed condition of PTSD before considering whether the condition is war caused. As stated by the Tribunal in Kaluza v Repatriation Commission [2013] AATA 424:
“The anterior, or threshold, question for the Tribunal is whether the veteran suffers from the disease as claimed. It is a distinct and separate statutory question, in the nature of a precondition to any entitlement to a pension. There is no provision of the VEA which expressly requires the Tribunal to have regard to the SoP criteria in determining this question. The requirement that the Tribunal be reasonably satisfied that the veteran suffers from the claimed disease will usually require medical opinion. A clinical diagnosis of a condition classified under DSM-IV would necessarily have regard to that manual and the criteria provided by it.
We note that the above paragraphs of the judgment in Warren were quoted in full by the Full Court in Summers.
From these statements of the Court we take that we must:
Decide the question of what diseases or injuries are suffered by Mr Kaluza as a separate question that is a precondition to any entitlement to pension;
Determine all aspects of that question to the standard of reasonable satisfaction;
Determine the question by reference to evidence of clinical diagnosis by medical experts that have, in turn, had regard to the diagnostic criteria provided for the relevant disease by DSM-IV and which in the cases of PTSD and anxiety and alcohol related disorders have been adopted in the definition part of the relevant SoPs”.
Both psychiatrists called to give evidence, Dr Collier and Dr Reid opined that Mr McKenna suffers from PTSD however they disagreed as to the date of clinical onset. Dr Collier referred to the diagnostic criteria contained in clause 3(b) of the SOP as derived from DSM–IV-TR and concluded that Mr McKenna’s symptoms satisfied the criteria. Dr Collier diagnosed Mr McKenna’s PTSD in 2010 noting that Mr McKenna had clear recollections of PTSD symptoms about 10 years ago that is, in around 2000. In his evidence to the Tribunal Dr Collier stated that he asked Mr McKenna when he had first experienced indicators such as nightmares, intrusive memories and irritability to which Mr McKenna responded about 10 years beforehand. Dr Collier first saw Mr McKenna on 2 February 2010 and again on 22 April 2010.
In his report dated 16 March 2012 Dr Reid reported that:
“With regard to the concept of posttraumatic stress disorder, certainly Mr McKenna continues to complain of distressing recollections and avoidance. His picture now is of posttraumatic stress disorder although it was hard to discern the impact of his symptoms given his alcohol mis-use. Investigations have placed some doubt about the stressors required to fulfil the diagnosis of post-traumatic stress disorder. The point may be academic if the Veterans’ Review Board have accepted this diagnosis.”
Dr Reid went on to state that if PTSD was to be accepted, than its onset had occurred in the last two years, that is in 2010.
Dr Reid said in his oral evidence to the Tribunal that in his opinion when he saw Mr McKenna in 2008, his symptoms did not satisfy the diagnostic criteria for PTSD as there was no evidence of an impact on his occupational functioning. In his report dated 16 August 2013, Dr Reid reported Mr McKenna’s psychiatric conditions in 2012 as posttraumatic stress disorder and alcohol dependence. He said in his evidence to the Tribunal that he was unable to state from which condition Mr McKenna first suffered. Dr Reid noted that PTSD can either present soon after the traumatic event or sometime later.
WHETHER PTSD WAR CAUSED?
Because Mr McKenna rendered operational service, section 120(1) and section 120(3) of the VE Act applies subject to section 120A which requires that the reasonableness of the hypothesis be assessed by reference to applicable SoPs. The Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 set out the following four step process of analysis to determine whether a reasonable hypothesis exists connecting service with a claimed condition:
1. The Tribunal must consider all of the material before it and determine whether the material points to some fact(s) (the raised facts) which support a hypothesis connecting the disease with the circumstances of the operational service and whether that hypothesis can be regarded as reasonable if the raised facts are true;
2. If the raised facts point to a hypothesis of a connection, is there a relevant Statement of Principles in force in respect of the kind of disease from which the veteran suffers?;
3. If a relevant Statement of Principles is in force, is the hypothesis consistent with the “template” found in the SoP? In particular does the hypothesis raised contain one or more of the factors that the Repatriation Medical Authority has determined to be the minimum that must exist and be related to the veteran’s service?;
4. If the hypothesis is reasonable, the Tribunal must be satisfied beyond reasonable doubt that the condition suffered by the veteran was not war-caused.
The hypothesis raised on behalf of the applicant is that his PTSD was attributable to his service in that it arose out of either or both of the incidents described above namely, the occasions when he was asked to assist in carrying wounded soldiers from the Vampire helipad to the hospital and/or, the Golding incident when he was threatened with a rifle. The Tribunal is satisfied that the raised facts, if true, support the hypothesis.
With regard to the second step, the relevant SOP has been identified as No. 5 of 2008. Following the conclusion of the hearing amendments were made to the Statement of Principles concerning posttraumatic stress disorder by Instrument No. 19 of 2014. The Tribunal does not consider that any of the amendments have particular relevance to the circumstances of this case.
The third step requires the Tribunal to determine whether the hypothesis is reasonable in that it is consistent with the SOP template. The elements of the SOP factors have been discussed above in the Tribunal’s consideration of the medical evidence and in particular Dr Collier’s diagnosis of Mr McKenna’s PTSD.
The Tribunal accepts Dr Collier’s analysis of Mr McKenna’s symptoms with respect to the SOP diagnostic criteria which was not undermined during cross-examination. Nor was any evidence presented to contradict Dr Collier’s opinions. The Tribunal accepts that Mr McKenna was exposed to the traumatic events as described by him in his evidence. In accordance with the above findings the Tribunal is satisfied that Mr McKenna experienced a category 1A stressor and a category 1B stressor as those terms are defined in the SOP. Both factors require that the experience of the category 1A stressor and the category 1B stressor occurred prior to the clinical onset of posttraumatic stress disorder. Whilst there was a difference of medical opinion as to the date of clinical onset of Mr McKenna’s posttraumatic stress disorder, it clearly postdates the stressors. The Tribunal is therefore satisfied that Mr McKenna’s circumstances satisfy the requirement for at least one of the factors set out in clause 6 to be related to relevant service and accordingly, the hypothesis is reasonable.
The remaining step is whether the Tribunal is satisfied beyond reasonable doubt that the condition suffered by Mr McKenna was not war-caused. At this point the Tribunal is entitled to consider whether it accepts the validity of the facts raised in support of the hypothesis. The relevant evidence has been comprehensively considered above and for the stated reasons the Tribunal concludes that it is not satisfied beyond reasonable doubt that Mr McKenna’s PTSD was not war-caused.
ALCOHOL DEPENDENCE
A diagnosis of alcohol dependence has been made by both Dr Collier and Dr Reid. Dr Collier first saw Mr McKenna on 2 February 2010 and again on 22 April 2010 and confirmed a diagnosis of alcohol dependence in his report dated 28 April 2010. In his report of 3 August 2010 Dr Collier stated:
“In my opinion Mr McKenna’s history of excessive, maladaptive alcohol consumption, together with the other features noted above, indicate that his condition meets the diagnostic criteria for alcohol dependence, according to DSM-IV.”
In the preceding paragraph Dr Collier had noted that Mr McKenna had continued drinking alcohol above recommended safe limits since his time in Vietnam but had recently made some modest reduction on the advice of his doctor.
In his report dated 27 April 2013 Dr Collier stated that the history that he took from Mr McKenna was that he did not drink alcohol to any significant extent prior to arriving in Vietnam and initially drank alcohol at a moderate level of between 2 to 3 cans of beer per night. Dr Collier reported that Mr McKenna had recalled assisting with wounded soldiers at Vung Tau quite early in his service in Vietnam and that his drinking escalated through the period of his time mostly after the TET Offensive. There was a significant increase in Mr McKenna’s alcohol consumption after the Ron Golding incident which occurred around September 1968. He claims that his consumption escalated to an estimated six cans per night. In a previous report Dr Collier had reported that Mr McKenna was eventually drinking up to 10 cans of beer per night in Vietnam.
In his evidence before the Tribunal Dr Collier opined that from the history that he took from Mr McKenna, he displayed features of alcohol dependence before he left Vietnam. It was contended on behalf Mr McKenna that there is material that points to a hypothesis connecting Mr McKenna’s alcohol dependence with the circumstances of his service. On the other hand, it was submitted by the respondent that there is insufficient evidence to establish that Mr McKenna had developed alcohol dependence during his period of service in Vietnam. The respondent relies on the evidence of Dr Reid who opined in his report dated 16 March 2012, that the onset of alcohol dependence had occurred in the last two years.
Both Dr Collier and Dr Reid possess eminent qualifications in the field of psychiatry and experience with the treatment and assessment of Vietnam veterans to proffer opinions with respect to a diagnosis of alcohol dependence. Both specialists are familiar with the relevant Statement of Principles and gave careful consideration to the diagnostic criteria for alcohol dependence.
In his report dated 16 March 2012 Dr Reid opined that Mr McKenna suffers alcohol dependence and that in his opinion, having seen McKenna previously in 2008, the onset had occurred in the last two years. He noted that when he had seen Mr McKenna in 2009 although his alcohol consumption was high, there was no obvious psychological or occupational dysfunction. In his report Dr Reid referred to a conversation that he had had with Mr McKenna’s wife who had disclosed that work for Mr McKenna had become more difficult in the last 6 to 12 months. She reported that he lacked motivation and she found herself forcing him to go to work. Mrs McKenna had said that her husband’s alcohol consumption was excessive and had been high for many years and that although he had attempted to reduce his alcohol intake after their marriage in 2003, it had quickly returned to a nightly basis and increased further over the last two years. Dr Reid referred to Dr Sale’s report dated 2 September 2004 in which he had opined that although Mr McKenna had a pattern of excessive drinking over a sustained period, there was no indication that he had developed psychological dependency.
It was Dr Sale’s opinion that Mr McKenna’s symptoms did not satisfy the DSM-IV diagnostic criteria for alcohol dependence. Dr Sale reported that Mr McKenna had said that his alcohol intake had increased while in Vietnam because:
“… there was little else to do. In addition, alcohol was available at very low cost. Typically, in South Vietnam he would drink with mates every night, unless actually on duty.’
Dr Sale further reported that Mr McKenna was ambivalent about whether his alcohol consumption constituted a problem for him and that he did not view his use of alcohol as excessive.
In his evidence at the VRB hearing Mr McKenna stated that he first commenced drinking during his recruit training at Puckapunyal to fit in with the other guys and continued drinking when he went to Vietnam because there was really nothing else to do once you had finished work. When asked about his alcohol consumption during his service in Vietnam Mr McKenna had replied that it had not changed and “was constant all the time”. In its findings the VRB did not consider that the incidents described by Mr McKenna during his service in Vietnam had any effect on his intake of alcohol on the basis of Mr McKenna’s own evidence that his drinking had remained much the same from the time he arrived in Vietnam to the present day.
It was Mr McKenna’s evidence at the appeal hearing that he had previously failed to fully disclose the impact of his service and in particular the particular traumatic events referred to above. This was confirmed by Dr Collier who said that Mr McKenna had told him that he had only given relatively limited information in the interviews with Dr Sale and Dr Reid as he predominantly responded to specific questions that were put to him without much elaboration.
The Tribunal is satisfied of the diagnosis of alcohol dependence on the basis of the evidence from Dr Collier and Dr Reid. The Tribunal further finds that the material raises a hypothesis which connects Mr McKenna’s condition with the circumstances of his service. In accordance with the provisions of section 120A of the VE Act and following the four step process as laid down in Deledio, the reasonableness of the hypothesis is to be assessed by reference to the Statement of Principles.
It was contended on behalf of Mr McKenna that the following factors in clause 6 are relevant to his circumstances namely:
(B) experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse;
(C) experiencing a category 1B stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse;
The stressors as defined in clause 9 are consistent with the definitions in the Statement of Principles concerning posttraumatic stress disorder as discussed above.
Both of these factors stipulate that the stressors occurred within five years before the clinical onset of alcohol dependence. It was submitted by Mr Browne that on the basis of Dr Collier’s evidence, the Tribunal could find that Mr McKenna’s alcohol dependence was established prior to his departure from Vietnam. In his written reports Dr Collier had not opined that Mr McKenna suffered alcohol dependence as the condition is defined in the SOP prior to leaving Vietnam. Dr Collier first saw Mr McKenna in February 2010 and opined in his report of 28 February 2010 that he inter alia, suffered from alcohol dependence. In his subsequent report of 3 August 2010 Dr Collier stated that it was his opinion, given Mr McKenna’s history of excessive maladaptive alcohol consumption together with the other features referred to above, that his condition meets the diagnostic criteria for alcohol dependence according to DSM-IV.
In his evidence to the Tribunal, Dr Collier stated with reference to the diagnostic criteria referred to in clause 3(b) of the SOP, that it was his opinion that Mr McKenna’s long-term excessive alcohol abuse constituted a “maladaptive pattern of alcohol use”. Dr Collier was then asked to address the specific criteria for alcohol dependence. With reference to “tolerance” he explained that this is where someone exhibits signs of less overt intoxication than a person who has consumed the same amount of alcohol. He stated that in his opinion, Mr McKenna had demonstrated such a tolerance during the latter part of his service in Vietnam. Dr Collier stated that the second criterion was not relevant as there was no evidence of withdrawal during Mr McKenna’s period of service. With reference to the third criterion, Dr Collier stated that there was evidence that Mr McKenna had spent large amounts of time drinking alcohol than was intended. Dr Collier stated that Mr McKenna had told him that he had made attempts to cut down his alcohol consumption but that this was after his service in Vietnam. In relation to the fifth criterion, Dr Collier said that Mr McKenna had spent many hours in the wet canteen at Vung Tau but acknowledged that this was partly due to his role in operating the canteen. He also referred to his consumption of alcohol in Australia during the lunch hour and at home. Dr Collier did not give any evidence with respect to the sixth criterion and stated that the seventh criterion was not relevant.
Clause 3(b) requires that a minimum of three of the identified criteria be satisfied for a diagnosis of alcohol dependence. Dr Collier suggested that those relevant to Mr McKenna’s period of service are subparagraphs (1), (3) and (5). It appeared to the Tribunal that Dr Collier had not previously considered the question as to whether Mr McKenna had developed alcohol dependence during his 12 month period of service in Vietnam in any great detail until he was asked to address the criteria during the course of his oral evidence. He said that he did not have written notes addressing the criteria against any reported symptoms during Mr McKenna’s period of service other than he had increased his alcohol intake which he had not attempted to control. The Tribunal considers that Dr Collier struggled to relate the criteria set out in subclause 3(b) with any reported symptoms during Mr McKenna’s period of service.
It is important to note that the criteria are prefaced by the indicator of “a maladaptive pattern of alcohol abuse, leading to clinically significant impairment or distress …”. The Tribunal finds that there was no satisfactory evidence presented to demonstrate that Mr McKenna had developed a “tolerance” as the term is defined during his period of service in Vietnam. There was evidence that he had increased his alcohol intake but as Dr Collier agreed, this of itself is not demonstrative of alcohol dependence. Nor was there evidence that Mr McKenna often consumed large amounts of alcohol over a longer period than he had specifically intended. It was his evidence that there were occasions when he “wrote himself off” for instance, when other soldiers were leaving. He also said that he had consumed excessive amounts of alcohol following the stressful incidents, but this in the Tribunal’s view does not meet the intent of this criteria, which suggests a pattern within a context of maladaptive alcohol use.
Nor was there any evidence of significant impairment or distress as a result of Mr McKenna’s alcohol intake during his period of service. Whilst there was evidence from other soldiers that Mr McKenna appeared to consume more alcohol than most of the other soldiers, there was other evidence contained in his army personnel file and in particular a report from Major Milliken, that he held a very responsible position as clerk in the traffic section of 2 AOD and was in charge of 18 other soldiers. Mr McKenna was also president of the unit soldiers club, the wet canteen and there was no report of his abuse of alcohol in this capacity. The contents of Major Milliken’s report indicated that Mr McKenna was held in high regard. The six-month report stated that Mr McKenna was captain of the Australian rules football team, a member of the unit rugby union and the unit volleyball team. Further, that he had “a very strong sense of responsibility, a high standard of sportsmanship and games competence”. It is acknowledged that this report most likely predated “ the Golding incident”, however there is no other persuasive evidence of a deterioration in Mr McKenna’s performance as a soldier or that he exhibited “clinically significant impairment or distress” during his period of service in Vietnam.
Mr Meehan suggested that McKenna’s sporting participation and ability had deteriorated during his service. There was however no other supporting evidence. Mr McKenna himself did not offer such evidence. It was his evidence that he continued to be actively involved in sport following his return to Australia until he was some 40 years of age.
The Tribunal considers that Dr Collier’s evidence that Mr McKenna may have developed the condition of alcohol dependence during his service in Vietnam was speculative and not supported by the evidence. Persuasive evidence is that Mr McKenna had developed alcohol dependence by the time he saw Dr Collier in April 2010 as the condition is defined in the Statement of Principles, which is consistent with Dr Reid’s opinion as he reports in March 2012.
For these reasons the Tribunal is satisfied beyond reasonable doubt that the hypothesis raised is not reasonable in that the circumstances of Mr McKenna’s alcohol dependence do not satisfy at least one of the factors set out in clause 6 of the SOP. The Tribunal finds that the clinical onset of alcohol dependence did not occur within five years of Mr McKenna experiencing either a category 1A stressor or a category 1B stressor.
DEPRESSIVE DISORDER
Dr Collier’s evidence was that Mr McKenna’s suffers from either a major depressive disorder or alternatively, a substance induced mood disorder with depressive features.
In his report of 16 March 2012, Dr Reid stated that Mr McKenna’s alcohol misuse appeared to be the most significant problem and that his alcohol dependence was likely to explain his impotence and the majority of his depressive symptoms. In his supplementary report dated 16 August 2013 in response to the question as to the diagnoses of Mr McKenna’s psychiatric conditions, Dr Reid replied that in 2012 Mr McKenna suffered posttraumatic stress disorder and alcohol dependence. It was Dr Reid’s opinion that Mr McKenna’s depression was related to his alcohol consumption. Dr Reid had not been asked to assess depressive disorder when he assessed Mr McKenna in 2012 although he said he was aware that the VRB had accepted the diagnosis of depressive disorder.
In his report of 3 August 2010 Dr Collier stated that he was not able to conclude that Mr McKenna’s depressive disorder commenced in the first five years after the traumatic event reported. Based on the history obtained, he opined that the depression appeared in the context of Mr McKenna’s established condition of alcohol dependence. He opined that Mr McKenna’s PTSD could be regarded as a further factor exacerbating and perpetuating his depressive disorder. Dr Collier went on to state that it is difficult to “to tease out the various symptoms with which veterans present, especially in the context of an alcohol problem, which can mask underlying difficulties.” Dr Collier stated that Mr McKenna had reported to him episodes of depression going back over 20 years prior to seeing Dr Collier, that would be around 1990.
The hypothesis relied upon is that Mr McKenna’s depressive disorder was related to his service in its connection with his PTSD which is service related. Alternatively, if the condition is assessed as a substance induced mood disorder, its service connection relates to Mr McKenna having alcohol dependence at the time of clinical onset.
In his oral evidence Dr Collier addressed the diagnostic criteria for both major depressive disorder and substance induced mood disorder with depressive features as contained in the Statement of Principles. After considering the criteria, Dr Collier appeared to be more confident of a diagnosis of major depressive disorder than a substance induced mood disorder with depressive features. The Tribunal is satisfied that Mr McKenna’s condition meets the diagnostic criteria for a depressive disorder. The Tribunal also accepts the hypothesis put forward connecting this condition with Mr McKenna’s service.
The relevant factors for major depressive episode in clause 6 identified by Mr Browne in his closing submissions were subparagraphs (a) (ii) and (iii). In his evidence before the Tribunal however, Dr Collier essentially discounted these factors on the basis that the experienced stressor would need to be within five years of the clinical onset of depressive disorder. As the disorder was not diagnosed within five years of these events the Tribunal agrees with his evidence.
The other factor identified was 6(a)(vii) “having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder”. Dr Collier said that he had found it hard to tease out the onset of a major depressive disorder in circumstances where there was evidence that the depression went back over 20 years and where there may have been symptoms of PTSD before depression. As the Tribunal has concluded above, the earliest presentation of symptoms of PTSD were those as reported by Dr Collier some 10 years prior to his first consultation with Mr McKenna, that is in around 2000. For the reasons identified above, the Tribunal has found that there was insufficient evidence to support a diagnosis of PTSD at the time of Mr McKenna’s service in Vietnam or at any date prior to the year 2000. This criterion is accordingly not satisfied.
With respect to the condition of “substance induced mood disorder with depressive features”, Mr Browne referred to factor 6(b)(iii) that is “having alcohol dependence or alcohol abuse at the time of the clinical onset of depressive disorder”. Mr McKenna’s alcohol dependence was diagnosed by both Dr Collier and Dr Reid in around 2010. On the basis of Dr Collier’s diagnosis of depressive disorder, it could be concluded that Mr McKenna was suffering alcohol dependence at the time of the clinical onset of his depressive disorder.
Whilst this factor is potentially satisfied, it is prefaced by clause 5 which reads “Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.” In this case the provisions of clause 7 are of no relevance. As the Tribunal has concluded that Mr McKenna’s alcohol dependence is not related to his service in terms of the factors identified in the relevant SOP, it must accordingly find that clause 5 is not satisfied in this case. For these reasons the Tribunal is satisfied beyond reasonable doubt that Mr McKenna’s depressive disorder is not war caused
ERECTILE DYSFUNCTION
This condition was first identified by Mr McKenna’s general practitioner, Dr Flecker in 2007. Based on the evidence there is no reason not to accept this diagnosis and the Tribunal is reasonably satisfied that Mr McKenna suffers from erectile dysfunction. The next issue for the Tribunal to consider is whether the material before it points to a hypothesis connecting this condition with the circumstances of Mr McKenna’s service.
The factor identified in the relevant Statement of Principles is that stated in clause 6(a) as “having a clinically significant psychiatric disorder from the specified list at the time of the clinical onset of erectile dysfunction”. The list of disorders is contained in clause 9 and relevantly includes alcohol dependence, major depressive episode, depressive disorder and posttraumatic stress disorder.
The disorder identified as being present at the time of diagnosis of erectile dysfunction in 2007 which is also accepted as being related to Mr McKenna’s service is posttraumatic stress disorder. For these reasons the Tribunal is accordingly not satisfied beyond reasonable doubt that Mr McKenna’s erectile dysfunction is not related to his service.
CONCLUSION
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.
I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member) [Sgd]
Administrative Assistant
Dated: 6 February 2014
Date(s) of hearing 25, 26, 27, 28 and 29 November 2013 Solicitors for the Applicant Mr R Browne, Fitzgerald and Browne Solicitors for the Respondent Mr K Rudge, Department of Veterans' Affairs Review Section
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