Calliess and Repatriation Commission
[2004] AATA 994
•17 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 994
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/436
VETERANS' APPEALS DIVISION ) Re MANFRED CALLIESS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S. Webb, Member Date 17 September 2004
PlaceCanberra
Decision The decision under review concerning alcohol dependence or alcohol abuse is set aside and in substitution thereof the Tribunal determines that Mr Calliess’ alcohol abuse is war caused and his alcohol dependence is defence caused.
The decision under review concerning PTSD is affirmed.
The matter is remitted to the Commission to determine the degree of Mr Calliess’ incapacity and the applicable rate of pension consistent with these reasons.
..............................................
Mr S. Webb, Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Disability Pension - Post Traumatic Stress Disorder - diagnosis not proven to the reasonable satisfaction standard – alcohol dependence or alcohol abuse - operational service and defence service – standards of proof - Statements of Principles - experiencing a severe stressor – proximate response - reasonable hypothesis – war causation of alcohol abuse not disproved beyond reasonable doubt – defence causation of alcohol dependence - decision concerning alcohol dependence or alcohol abuse set aside – decision concerning Post Traumatic Stress Disorder affirmed
VETERANS' ENTITLEMENTS ACT 1986 ss 5D, 9, 13, 21A, 68, 70, 119, 120, 120A, 120B
Statement of Principles Concerning Alcohol Dependence or Alcohol Abuse Instrument Number 76 of 1998
Statement of Principles Concerning Alcohol Dependence or Alcohol Abuse Instrument Number 77 of 1998
Statement of Principles Concerning Post Traumatic Stress Disorder Instrument Number 3 of 1999
Statement of Principles Concerning Post Traumatic Stress Disorder Instrument Number 4 of 1999
· Benjamin v Repatriation Commission [2001] FCA 1879
· Repatriation Commission v Smith (1987) 74 ALR 537
· Repatriation Commission v Deledio (1998) 83 FCR 82
· Repatriation Commission v McKenna [1998] FCA 787
· McKenna v Repatriation Commission [1999] FCA 323
· East v Repatriation Commission (1987) 74 ALR 518
· Smith v Repatriation Commission [2004] FMCA 368
· Lees v Repatriation Commission (2002) 36 AAR 484
· Woodward v Repatriation Commission [2003] FCAFC 160
REASONS FOR DECISION
September 2004 Mr S. Webb, Member 1. By this application Manfred Calliess is seeking relief from a decision of the Repatriation Commission (“Commission”), as varied by the Veterans’ Review Board (“VRB”) on 5 February 2003, to reject his claim for acceptance of Post Traumatic Stress Disorder (“PTSD”) and alcohol dependence and alcohol abuse as war caused or defence caused.
2. The matter came on for hearing in Canberra on 2 and 3 September 2004. Mr Calliess was represented by Mr K. Johnson, Vietnam Veterans’ Association of Australia advocate. The Commission was represented by Mr N. Bunn, Commission advocate. Mr Calliess, Mr E. Quigley, Mr B. O’Keefe, Mr J. Wilson, Dr J. Roberts and Dr B. White gave oral evidence. Materials were tendered and labelled as exhibits.
factuial context
3. The following facts arise from the material and are not in dispute.
4. Mr Calliess (date of birth: 8 October 1946) enlisted in the Royal Australian Air Force (“RAAF”) on 22 April 1968 for a 6 year period. He has operational service in Vietnam from 21 May 1970 to 19 May 1971, during which period he was mustered as a Senior Supply Clerk in 1 Operational Support Unit based at Vung Tau. On returning to Australia he continued with the RAAF and was re-engaged in 1974. Mr Calliess has eligible defence service from 7 December 1972 to 3 May 1988, on which day he was discharged from the RAAF. Thereafter he was employed by the Department of Defence until 16 October 1998. After a break of 14 months, he obtained employment with the Department of Defence on short term contracts.
5. He suffers from hypertension and bilateral sensorineural hearing loss with tinnitus which were accepted as war-caused on 26 January 1999 and 27 April 1998 respectively.
6. On 22 November 1999 his claim for “PTSD/Psychological Substance Abuse” (T7) was rejected. Mr Calliess made subsequent claims for “PTSD/anxiety” and “alcohol abuse & dependence” (T13). These claims were rejected on 5 February 2003 by a delegate of the Commission in a decision that accepted the diagnoses of both conditions and continued his disability pension at 30 percent of the General Rate. The delegate stated:
“Post traumatic stress disorder
…
I am satisfied that none of the factors contained in the Statement of Principles [54 and 55 of 1999 concerning PTSD] apply in Mr Calliess’ case.
…
The veteran may suffer from a psychiatric condition but the available evidence does not support the veteran’s contentions regarding specific and severe stressors he has claimed occurred on operational service causing this condition. Further, the historical research considers it unlikely that the veteran, as a Supply Clerk, would have been required to attend a helicopter crash site at Captain’s Flat as part of his duties while on eligible service.
I have considered all relevant evidence and am satisfied beyond reasonable doubt that post traumatic stress disorder is not related to Mr Calliess’ operational service. I am also satisfied that the condition is not related to his eligible service.
Alcohol dependence or alcohol abuse
…
I am satisfied that none of the factors in the Statement of Principles [76 and 77 of 1998 concerning alcohol dependence or alcohol abuse] apply in Mr Calliess’ case.
…
As stated above the evidence does not support a contention that the veteran was exposed to the severe stressors as has been claimed. The veteran may indeed suffer from a psychiatric condition but the evidence to hand does not relate this condition to service.
I have considered all of the relevant evidence and am satisfied beyond reasonable doubt that alcohol dependence or alcohol abuse is not related to Mr Calliess’ operational service. I am also satisfied that the condition is not related to his eligible service.”
7. On 7 August 2003 the VRB reviewed the decision and decided to:
“. Vary the decision under review by excluding the diagnosis of post traumatic stress disorder on the ground that no such illness or injury as defined in Section 5D of the Veterans Entitlements Act 1986 is present in the veteran.
. Affirm the decision under review as varied in relation to alcohol abuse. This means the decision of the Repatriation Commission is unchanged in relation to that condition.”
8. Mr Calliess’ application for review of that decision was received by the Tribunal on 20 November 2003.
9. On 2 June 1999 and 31 March 2004 Mr Calliess was examined by Dr B. White, consultant psychiatrist, and related reports are in evidence (T8 and Exhibit R8).
10. On 17 February 2004 Mr Calliess was examined by Dr J. Roberts, consultant forensic psychiatrist. Dr Roberts’ report is in evidence (Exhibit R1).
the applicant’s claims
11. Mr Calliess claimed that:
(a)He suffers from PTSD and alcohol dependence and alcohol abuse which are related to his operational service and/or his eligible defence service;
(b)He started drinking beer after enlisting in the RAAF in 1968 because “at that time the Vietnam war was at its height and I knew I would be going over there at some time” (T5, folio 33);
(c)Prior to his operational service he drank five to ten middies of beer per day (T5, folio 33);
(d)After being posted to Vietnam his “consumption [of beer] went up to 15-20 cans per day” (T5, folio 34);
(e)He experienced severe stressors on operational service including:
(i)assisting injured servicemen, including burns victims and amputees, onto medivac flights at Vung Tau;
(ii)assisting loading aircraft at Vung Tau with caskets containing deceased servicemen for return to Australia, at least one of whom was an acquaintance of Mr Calliess;
(iii)hearing small arms fire in the forest adjoining the road between Vung Tau and Saigon when travelling to collect stores from Saigon;
(iv)finding the corpse of a United States serviceman with his throat cut while on duty as a driver in Vung Tau;
(v)witnessing incoming rocket or mortar fire in close proximity while on the base at Vung Tau.
(f)He experienced a severe stressor during eligible defence service in which he was sent to scour the site of a fatal helicopter crash in the vicinity of Captain’s Flat for parts after the site had been cleared and bodies of the deceased had been removed. However, Mr Calliess could not recall whether this alleged incident occurred before or after his operational tour in Vietnam.
(g)He has consistently consumed “10-20 middies” (T5, folio 34) or “10 to 15 schooners” (oral evidence) of full strength beer each day since returning from Vietnam and continuing.
(h)He is socially withdrawn and has symptoms that are consistent with PTSD, which he self-treats with alcohol.
legal principles
12. Mr Calliess’ application rises for consideration under the Veterans’ Entitlements Act 1986 (“the Act”). Under the Act the Commonwealth is liable to pay a veteran who is incapacitated by a war-caused injury or disease (s.13) or by a defence-caused injury or disease (s.70(1)) a pension by way of compensation. An injury or disease is taken to be war-caused, inter alia, if it “resulted from an occurrence that happened while the veteran was rendering operational service” or it “arose out of, or was attributable to” any eligible war service (s.9) or defence service (s.70(5)) rendered by the veteran.
13. The first step for the Tribunal is to determine whether the claimed “injury” or “disease” is consistent with the definitions of those terms at s.5D. Questions of diagnosis are to be determined according to the “reasonable satisfaction” standard of proof (s.120(4)) before considering whether there is a relevant Statement of Principles (“SoP”) that applies. The Full Federal Court in Benjamin v Repatriation Commission [2001] FCA 1879 stated at paragraph 55:
“The first question for the Tribunal will be how to characterise the psychiatric problems exhibited by the Veteran. If the Tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s.120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s.120(1).”
14. Beaumont J discussed the meaning of the term “reasonable satisfaction” in Repatriation Commission v Smith (1987) 74 ALR 537 and observed at 547:
“There is, in this connection, a distinction of substance to be drawn between probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other.”
15. In relation to claims under Part II of the Act involving operational service the claimed injury or disease will be war-caused unless the Commission, or in its shoes this Tribunal, is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination (s.120(1)). The Commission will be so satisfied if, after consideration of all of the material, the material does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the veteran (s.120(3)). The Full Federal Court in Repatriation Commission v Deledio (1998 ) 83 FCR 82 said at 97-98:
"i. 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.
ii. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s.196B(2) or (11)...
iii. 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. ... 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.
iv. 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."
16. In Repatriation Commission v McKenna (1998) FCA 787, which was upheld by the Full Court on appeal (McKenna v Repatriation Commission (1999) FCA 323), Goldberg J said:
"[A] hypothesis has to point to a connection which starts with the disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a Statement of Principles and, if need be, by more than one Statement of Principles".
17. The standard of proof to be applied in relation to claims under Part IV involving defence service (s.68) (other than in a peacekeeping force or involving hazardous service) is the “reasonable satisfaction” standard (s.120(4)) (East v Repatriation Commission (1987) 74 ALR 518). For claims brought after 1 June 1994 reference is to be had to any relevant SoP and the state of reasonable satisfaction will only be achieved if the material before the Commission raises a connection that is consistent with that SoP (s.120B).
issues for determination
18. The issues for determination by the Tribunal in this matter are:
(a)whether Mr Calliess suffers from an injury or disease within the terms of the Act, specifically PTSD and alcohol dependence or alcohol abuse; and
(b)if so, whether that injury or disease is war caused or defence caused; and
(c)if so, the degree of Mr Calliess’ incapacity from the injury or disease and the rate of pension that is payable.
summary findings
19. The reasons for the following findings are set out below.
20. Mr Calliess has operational service from 21 May 1970 to 19 May 1971 and has eligible defence service from 7 December 1972 to 3 May 1988.
21. I am reasonably satisfied that Mr Calliess does not suffer from PTSD. It follows that Mr Calliess’ claim in relation to PTSD cannot succeed.
22. On the balance of probabilities Mr Calliess does suffer from alcohol dependence and previously suffered from alcohol abuse.
23. The applicable SoPs concerning Alcohol Dependence or Alcohol Abuse are Instrument Numbers 76 and 77 of 1998.
24. The material before me points to a hypothesis connecting Mr Calliess’ alcohol abuse with the circumstances of his operational service in Vietnam. The hypothesis is consistent with factor 5(b) of the SoP Number 76 of 1998 and is reasonable therefore. I am not satisfied, beyond reasonable doubt, that Mr Calliess’ alcohol abuse is not war caused and find that it is war caused.
25. The material raises a connection between Mr Calliess’ alcohol dependence and his eligible defence service that is consistent with factor 5(a) of the SoP Number 77 of 1998. I find, on the balance of probabilities that his alcohol dependence is defence caused.
26. There is insufficient evidence before me to determine the correct degree of Mr Calliess’ incapacity and the rate of pension that is payable. The matter will be remitted to the Commission to properly determine those matters.
decision
27. The decision under review concerning alcohol dependence or alcohol abuse is set aside and in substitution thereof the Tribunal determines that Mr Calliess’ alcohol abuse is war caused and his alcohol dependence is defence caused.
28. The decision under review concerning PTSD is affirmed.
29. The matter is remitted to the Commission to determine the degree of Mr Calliess’ incapacity and the applicable rate of pension consistent with these reasons.
reasons for the decision
30. Making this decision I have carefully considered all of the material before me, the credibility of witnesses, the submissions of the parties, the relevant caselaw and legislation.
credit
31. I had the benefit of observing Mr Calliess during the hearing and found him to be a witness of truth who gave his evidence to the best of his recollection. I note, however, that in some areas his recollection was faulty to the extent that he had difficulty placing events in time or chronological order, he had difficulty recalling precise details and events, and he found it difficult to disentangle memory fragments and details that were conflated in his mind. I accept that Mr Calliess was a reluctant witness, even though he has brought this application, and note that his testimony was imbued with reticence and brevity. As will appear, I accept Mr Calliess’ evidence in essential part but with caution and due regard to all the material before me.
diagnosis
32. Mr Calliess relied on two reports and oral evidence of Dr White to confirm a PTSD diagnosis. The Commission was not persuaded to accept that evidence and preferred the report and oral evidence of Dr Roberts. As will appear, I agree.
33. The seven diagnostic criteria for PTSD are set out at F43.1 in the Diagnostic and Statistical Manual for Mental Disorders Fourth Edition (“DSM-IV”). Essentially characteristic symptoms following exposure to an extreme traumatic stressor must be present before a diagnosis of PTSD can be made. Those symptoms include a proximate response of intense fear, helplessness or horror and subsequently “persistently reexperiencing of the traumatic event”, “persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness”, “persistent symptoms of increased arousal” and “clinically significant distress or impairment in social, occupational or other important areas of functioning”.
34. Considering the evidence of Dr White and Dr Roberts, I note that Dr Roberts found no symptoms consistent with heightened anxiety and reported “[o]n clinical grounds he presents in a totally normal manner” (Exhibit R1, p12). That finding appears to be consistent with the absence from Dr Dawson’s clinical notes (Exhibit R3) of any reference to PTSD symptomatology prior to being called upon to complete a claim form in relation to PTSD in 1999.
35. Mr Calliess’ evidence, which I accept, was that he experiences occasional distressing dreams and nightmares concerning aircraft and his experiences in Vietnam. He claimed to experience tightness in his chest on waking with a sense of choking or sweating heavily. I note that there is some evidence to suggest he was diagnosed with Globus Hystericus in 1970 and has since suffered occasionally from similar “lump in the throat” symptomatology, which may be attributable to physical causes, such as gastro-oesophageal reflux disease. Night sweats may be caused by factors including temperature and alcohol consumption, as well as anxiety.
36. Mr Calliess gave evidence that he finds it difficult to mix with people, cannot abide crowds and has not attended ANZAC Day events for a number of years. Mr Calliess claimed he had difficulty concentrating and was prone to become irritable. That evidence must be considered in relation to the rest of the material before me which indicates that Mr Calliess was happy in the RAAF and sought re-engagement in 1974. Difficulties in his marriage after his operational tour and later in 1998-1999 were, by his own account, related to the level of his alcohol consumption. He regularly drinks with three or four friends, at least one of whom, Mr Quigley, he knew in the RAAF. Mr Quigley’s evidence was that Mr Calliess has become more withdrawn and softly spoken over time, and that he does not pursue any involvement with sport as he previously did. However, those changes are not necessarily indicative of a PTSD and may be related to Mr Calliess’ age and his habitual or chosen patterns of living. Dr Dawson noted that Mr Calliess “withdraws when drunk” (Exhibit R3, p91).
37. Mr Calliess did not complain of any PTSD symptoms in a clinical setting prior to 1999. There is no evidence Mr Calliess has experienced difficulties in his employment. His own evidence was that prior to 1998 he would visit clients and drink with them, and attend meetings in the performance of his duties. I note that following discharge from the RAAF in 1988 and his employment by the Department of Defence in June of that year he was promoted to “ASO2” on 16 November 1989 and to “ASO4” on 26 July 1990 (Exhibit R5, pp7-8). He attained the level of an “ASO6” before separating from the Department on 16 October 1998 (Exhibit R5, p16). I also note that Mr Calliess had no difficulty obtaining contractual employment with his previous employer which he continues to perform to this day.
38. Considering all of the material and applying the civil standard I am not persuaded by Dr White’s evidence and prefer Dr Roberts’ assessment that Mr Calliess cannot correctly be diagnosed to be suffering from PTSD. I so find.
39. It may be that Mr Calliess is suffering from Globus Hystericus or some other disorder that may be related to anxiety or depression. However, there is insufficient evidence before me to make such a finding. I note the comments of Dr Roberts and Dr White on that subject and accept Dr White’s observation that it is extremely difficult to diagnose an anxiety disorder in a person who suffers from alcohol dependence or abuse.
40. Considering all of the evidence I am satisfied, on the balance of probabilities, that Mr Calliess does not suffer from PTSD. It follows that his claim must fail in that regard.
41. Is Mr Calliess suffering from alcohol dependence (F10.2x, DSM-IV) or alcohol abuse (F10.1, DSM-IV)?
42. Mr Calliess’ evidence concerning the pattern and level of his alcohol consumption was not seriously challenged and I accept it. I also accept Dr White’s diagnosis that Mr Calliess is suffering from alcohol dependence or alcohol abuse. Dr White gave evidence, which I accept, that Mr Calliess’ main problem is a maladaptive pattern of alcohol consumption associated with tolerance, drinking alcohol to avoid withdrawal, spending large amounts of time drinking alcohol and continuing to drink despite his knowledge that the persistence of hypertension is either caused or exacerbated by alcohol consumption. I so find.
43. I am not persuaded by Dr Roberts’ conclusion that Mr Calliess’ “normal presentation” and the absence of evidence of dysfunction in his employment or in his domestic life render the level of alcohol consumption claimed by Mr Calliess inconceivable.
44. I accept Mr Calliess’ evidence that he regularly drinks 10 schooners of full strength beer on week days without feeling drunk, but feels intoxicated when he drinks 15 or more schooners on a Saturday or Sunday. I also accept that he arranges his working day so that he finishes at around 3pm, thereby allowing three hours or so in which to drink beer with his mates at a tavern before going home at around 6pm. Mr Quigley gave evidence that Mr Calliess would spend approximately three hours each day consuming alcohol. I accept that Mr Calliess has consumed alcohol at this level on a daily basis, spending a great deal of time in that pursuit without relief for many years and is, in all likelihood, clinically dependant on alcohol to the extent that he drinks to avoid symptoms of withdrawal.
hypothesis
45. Following the often quoted Deledio (supra) steps, I now turn to consider whether the material raises a hypothesis connecting Mr Calliess’ alcohol dependence or abuse and his eligible service. Mr Calliess asserted that the material raises four hypotheses connecting his alcohol dependence or abuse and his eligible service:
(a)stressors he experienced on operational service caused him to increase his alcohol intake to the degree of dependence or abuse;
(b)stressors on operational service caused him to suffer a psychiatric disorder which caused him to increase his consumption of alcohol to the degree of dependence or abuse;
(c)Stressors on defence service caused him to increase his alcohol consumption to the degree of dependence or abuse or the worsening thereof;
(d)Stressors on defence service caused him to suffer a psychiatric disorder which caused him to increase his alcohol intake to the degree of dependence or abuse or the worsening thereof.
46. The material on which Mr Calliess’ hypotheses of connection are raised is as follows.
47. Mr Calliess gave evidence that he started drinking beer on enlistment in the RAAF in 1968 and he was drinking from five to ten middies of beer per day and was in control of his consumption at that level prior to departing on operational service in May 1970. His evidence was that his alcohol intake increased during operational service because of the stressors he experienced and remained at a high level thereafter. Mr Calliess’ estimates of his alcohol consumption on operational service vary from “six cans of beer usually [every night when not on duty]” (Exhibit R8, p3), to “15-20 cans per day” (T5, folio 34), to “up to 20 to 30 cans of beer a day” (T8, folio 50).
48. I have listed the stressors Mr Calliess claims he experienced on operational and defence service above [11 (e) and (f)]. I pause to note that the evidence concerning Mr Calliess’ claimed stressor on defence service [11(f)] is that the helicopter crash to which he refers occurred in 1969, outside the period of Mr Calliess’ eligible service (Exhibit R2, p3). Mr O’Keefe and Mr Wilson gave evidence that Mr Calliess may have been called upon to assist loading medivacs and caskets at Vung Tau as a part of his duties. Mr Wilson gave evidence that Mr McNair was injured on 3 July 1970 and was hospitalised at Vung Tau before being transferred to Saigon on 11 July 1970, where he died on 20 July 1970. His evidence was that “RAAF Historical Records do not have any record of the arrangements made for the return of McNair’s body to Australia” (Exhibit A1, p1). In his oral evidence he stated that while it was not necessary for a flight transporting Mr McNair’s body from Saigon to Australia to go to Vung Tau, where Mr Calliess may have been exposed to it, “that is an assumption in this case”. Mr Tilbrook accepted that Mr Calliess may have witnessed the loading of a casket containing the body of Mr A. Bloxham, an acquaintance of Mr Calliess at Vung Tau who was injured in action and subsequently died (T9, folio 55).
49. Dr White reported that (Exhibit R8, p4):
“After Vietnam [Mr Calliess] had marital problems related to his alcohol abuse. He found that service life produced an expectation that he attend the Sergeants Mess where drinking was a strong part of the social setting.”
Mr Calliess and Mr Quigley gave oral evidence that beer was freely available on service and in Public Service employment thereafter. I note that Mr Quigley estimated that he has known Mr Calliess for “26 to 27 years”, placing their meeting in or about 1977, and gave oral evidence corroborating Mr Calliess’ claimed history of alcohol consumption over that period and continuing. Mr Calliess claimed in his evidence to the VRB that he was charged for being intoxicated on duty on one occasion on service. He gave oral evidence that he had one charge of driving while drunk in 1978 or thereabouts. There are pathology reports in Dr Dawson’s clinical notes indicating that Mr Calliess had raised Gamma GT levels on 1 June 1989 and 31 January 1991 (Exhibit R3 pp 46 and 51).
50. With regard to “suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse”, Dr White reported that Mr Calliess’ medical records indicate that he suffered from Globus Hystericus, relating to anxiety, on operational service in Vietnam in 1970 (Exhibit R8, p4). Dr White reported that Mr Calliess suffered from PTSD in response to the stressors he experienced on service (Exhibit R8 and T8).
relevant statements of principle
51. The relevant SoPs determined by the Repatriation Medical Authority concerning Alcohol Dependence and Abuse are, in relation to operational service, Instrument Number 76 of 1998 (“SoP1”) and in relation to eligible defence service Instrument Number 77 of 1998 (“SoP2”). The relevant SoPs concerning PTSD are Instrument Number 3 of 1999 (“SoP3”) in relation to operational service and Instrument Number 4 of 1999 (“SoP4”) in relation to defence service.
is the hypothesis reasonable?
52. Before it can be said, in relation to operational service, that a reasonable hypothesis has been raised, or in relation to defence service, that on the balance of probabilities alcohol dependence or abuse is connected with the circumstances of the person’s service, at least one of the factors set out in SoP1 or SoP2 must be found to exist. The factors in SoP1 and SoP2 are:
“(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe stressor within the two years (one year – SoP2) immediately before the clinical onset of alcohol dependence or alcohol abuse; or
(c)suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(d)experiencing a severe stressor within the two years (one year – SoP2) immediately before the clinical onset of alcohol dependence or alcohol abuse;
(e)inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.”
53. It is convenient to deal separately with the hypotheses concerning operational service and Mr Calliess’ claims concerning eligible defence service as different standards of proof apply.
reasonable hypothesis - operational service
54. In the Commission’s submission there is no evidence concerning the clinical onset of alcohol dependence or alcohol abuse. Proof of facts is not in question at this stage. Nonetheless, the raised material must point to each of the constructive elements of the hypothesis (see Smith v Repatriation Commission (2004) FMCA 368 at paragraph 59). The meaning of the term “clinical onset” was considered in Lees v Repatriation Commission (2002) 36 AAR 484 (see paragraphs 13 to 16).
55. The terms “alcohol dependence” and “alcohol abuse” are defined in SoP1 and SoP2 and “diagnostic criteria” are listed for each condition.
56. Mr Calliess’ evidence concerning the pattern and level of his alcohol consumption in Vietnam is consistent with a maladaptive pattern of alcohol use involving recurrent use of alcohol in circumstances in which it was physically hazardous, accepting that the recurrent use of alcohol by a serviceman in Vung Tau in 1970 to 1971 was physically hazardous. Dr White’s report that Mr Calliess experienced marital problems “after Vietnam” as a result of his abuse of alcohol points to a proximate relationship between his operational service and alcohol abuse and a causal relationship between his alcohol abuse and his marital problems on returning from Vietnam. Mr Calliess’ evidence was that he continued to drink alcohol. That evidence points to him continuing to use alcohol despite interpersonal problems in his marriage that were then persisting as a result of his alcohol consumption.
57. That material is, at the minimum, consistent with the diagnostic criteria for “alcohol abuse” in SoP1. It points to the existence of alcohol abuse and its clinical onset on or soon after Mr Calliess’ return from operational service in Vietnam.
58. It is necessary to consider the limbs on which the hypotheses claimed by Mr Calliess rest. Did he suffer from a psychiatric condition at the time of the clinical onset of alcohol abuse (factor 5(a)) or did he experience a severe stressor within the period of two years before the clinical onset of alcohol abuse (factor 5(b))?
59. The raised material points to Mr Calliess suffering from Globus Hystericus in 1970 on operational service in Vietnam. However, that condition does not conform to the definition of “psychiatric disorder” in SoP1 and cannot, therefore, raise a reasonable hypothesis in relation to “alcohol abuse”.
60. I have found that a diagnosis of PTSD is not made out on the balance of probabilities. Dr White is of the opinion that Mr Calliess suffered from PTSD during his tour in Vietnam. I note, however, that Dr White formed that opinion in 1999 and that there is scant material raised before me pointing to Mr Calliess experiencing symptoms that are consistent with the “diagnostic criteria” for PTSD set out in SoP3 at the time of the clinical onset of his alcohol abuse on or soon after his operational tour in Vietnam. Each of the criteria (2(b)(A) to (F)) in the SoP3 must be pointed to by the material before me. They are not. Simply, there is insufficient material on which to raise a diagnosis of PTSD in Mr Calliess at that time. The material before me points to a veteran who was exposed to stressful events in the context of hostilities and resorted to drinking alcohol with his mates in order to alleviate the feelings evoked in him by those events.
61. I now turn to the second limb of the raised hypothesis concerning factor 5(b) of SoP1. The term “experiencing a severe stressor” is defined in SoP1 to mean:
“…the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
…events that qualify as severe stressors include:
(i) threat of serious injury or death;or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
62. The material raised before me points to Mr Calliess assisting with loading medivac casualties and caskets containing deceased servicemen onto aircraft at Vung Tau. The material also points to activities occurring in the context of hostilities in which Mr Calliess was confronted with actual injury and death, including the injury and subsequent death of Mr McNair and Mr Bloxham, and the threat of serious injury or death in the performance of his duties. I note his evidence concerning discovering the body of a US serviceman and witnessing incoming rocket or mortar fire and hearing small arms fire while driving to Saigon to collect stores. Following Woodward v Repatriation Commission [2003] FCAFC 160 (30 July 2003) (see paragraphs 125-126), these are events in which Mr Calliess experienced, witnessed and was confronted by actual death, serious injury and threat to his physical integrity and that of others. They are events which “might evoke intense fear, helplessness or horror” in a person such as Mr Calliess in the circumstances of his operational tour of duty between May 1970 and May 1971. Mr Calliess description of his feelings in response to the events listed, being “shocked”, “stressed”, “feeling sad” and being unable to remember his feelings must be considered in relation to his reluctance to discuss those events, his difficulty remembering what occurred and the numbing effect of more than 30 years of alcohol abuse or dependence. I accept that the words he used to describe his feelings from this distance point to proximate responses and feelings of the requisite kind that might have been evoked by the listed events.
63. These raised events were within a period of two years prior to the clinical onset of alcohol abuse in Mr Calliess on or soon after his operational tour in Vietnam. That being so, the material points to a hypothesis that is consistent with factor 5(b) of SoP1. It follows that that hypothesis is a reasonable hypothesis pursuant to s.120A(3) and s.120(3).
64. Considering the matters set out at s.119 and noting that there is no onus of proof on either party (s.120(6)), Mr Calliess’ alcohol abuse will be determined to be war-caused unless I am satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. I am not so satisfied and there is no sufficient ground to determine that his alcohol abuse is not war caused. I determine, therefore, that Mr Calliess’ alcohol abuse is war caused.
defence service
65. Turning to Mr Calliess’ claims in relation to his eligible defence service, it is necessary to determine, on the balance of probabilities, whether any of the factors set out in SoP2 exist to connect Mr Calliess’ alcohol dependence or alcohol abuse or the clinical worsening thereof and his defence service.
66. I have already determined that Mr Calliess’ alcohol abuse is war-caused. Plainly, on the basis of the foregoing, it is not necessary to consider whether that condition is also defence caused. However, for completeness I will consider his claims in relation to alcohol dependence and the clinical worsening of alcohol abuse in relation his eligible defence service.
67. The evidence on which Mr Calliess relies concerns Dr White’s opinion that he suffered from a PTSD during his tour of operational service in Vietnam (SoP2 factors 5(a) and (c)) and that he experienced a severe stressor (SoP2 factors 5(b) and (d)). I have already dealt with Dr White’s opinion and the lack of sufficient material pointing to a diagnosis of PTSD. There is no further material to support such a diagnosis during the period of Mr Calliess’ defence service.
68. I have found that Mr Calliess suffered from alcohol abuse (DSM-IV F10.1) that was war caused prior to his defence service. The pattern and level of Mr Calliess’ alcohol intake thereafter was not challenged. I accept, on the balance of probabilities, that Mr Calliess was consuming 15 to 20 cans of full strength beer on most days at least from July 1970. It is reasonable to conclude that if such a maladaptive pattern of alcohol consumption continued without abatement it would lead to the clinical onset of alcohol dependence or the clinical worsening of alcohol abuse.
69. There is scant evidence of the date of the clinical onset of such alcohol dependence or the clinical worsening of alcohol abuse in Mr Calliess. SoP2 defines “alcohol dependence”. Mr Calliess’ evidence was that he could function effectively in the performance of his duties despite drinking 10 to 15 schooners of full strength beer each day from the time of his operational tour in Vietnam. Dr White’s evidence was that such ability to function despite that level of alcohol consumption is indicative of tolerance to alcohol, whereby it has a diminished effect, and continuing consumption to avoid withdrawal symptoms, which by inference would affect performance. That evidence is consistent with diagnostic criteria 2(b)(1) and (2). There is evidence that Mr Calliess experienced a culture of drinking during his eligible defence service in which he attended the Sergeant’s Mess to drink alcohol. The evidence of Mr Calliess and Mr Quigley that Mr Calliess would drink for approximately three hours each day at least from 1977 is indicative of him spending a significant amount of time in that activity. The diagnostic criterion 2(b)(5) refers to “a great deal of time”. That is a relative term without definition in the SoP. By any measure spending three hours each day consuming alcohol is a great deal of time spent in that activity. The evidence is that Mr Calliess continued to use alcohol despite knowing that he had a psychological problem that was related to alcohol. By his own account, he drank alcohol in order to alleviate the psychological stress and the memories from his time in Vietnam and in conformity with a culture of drinking on service in the Sergeant’s Mess. The evidence that he had marital difficulties on returning from Vietnam as a result of his alcohol abuse indicates that he had knowledge of the problem, but he continued to use alcohol nonetheless. The evidence is that Mr Calliess continued to use alcohol despite a diagnosis of hypertension in 1984. That is a condition the persistence of which may have been caused or exacerbated by his use of alcohol.
70. On that evidence I am reasonably satisfied, on the balance of probabilities, that Mr Calliess suffered from alcohol dependence, as defined in the SoP2, with at least three of the requisite criteria being present during the period of his eligible defence service and so find.
71. When did the clinical onset of alcohol dependence occur? I am required by s.119(g) to act according to the substantial justice and merits of the case without regard to legal form and technicalities and to take into account any difficulties that lie in the way of ascertaining any fact or circumstance (s.119(h)).
72. I am reasonably satisfied that Mr Calliess maintained the maladaptive pattern of alcohol abuse he commenced on operational service in Vietnam on his return and during the period of his eligible defence service. Considering the substantial merits of the case and the difficulties arising from the passage of time, I find, on the balance of probabilities, that Mr Calliess suffered the clinical onset of alcohol dependence at some time during the period of his eligible defence service from 7 December 1972 to 3 May 1988. In all likelihood the clinical onset of alcohol dependence occurred at or about the time Mr Calliess was drinking alcohol in the Sergeant’s Mess and with Mr Quigley in a tavern on a regular daily basis, that is in or about 1977. Were that not so, the evidence would lead me to conclude that clinical onset of alcohol dependence occurred in Mr Calliess in or about 1984 following the diagnosis of hypertension and his continued use of alcohol in that circumstance thereafter. I so find.
73. Whether clinical onset of alcohol dependence occurred in 1977 or 1984, the evidence is that Mr Calliess was suffering from the psychiatric disorder of alcohol abuse at that time. Alcohol abuse is an Axis 1 psychiatric disorder that is described at F10.1 of DSM-IV.
74. That being so and applying the reasonable satisfaction standard of proof it follows that the “facts” are consistent with the “template” of SoP2 (factor 5(a)) and Mr Calliess’ alcohol dependence is connected with the circumstances of his eligible defence service. I so find.
75. Following McKenna (supra) and clause 7 of SoP2, the psychiatric condition of alcohol abuse from which Mr Calliess suffered at the time of the clinical onset of his alcohol dependence must be related to eligible service. I have determined that that condition is war caused.
76. With Regard to factor 5(b) of SoP2 concerning a severe stressor, the evidence is that Mr Calliess was detailed to scour a helicopter crash site for parts some days after the site had been cleared of wreckage and the bodies of the deceased. This he claimed was a severe stressor. The evidence of Mr O’Keefe is that there were two helicopter crashes in the vicinity of Captain’s Flat, but both occurred in 1969 prior to Mr Calliess’ operational tour in Vietnam and outside the period of his eligible defence service.
77. That being so, I am unable to determine, on the balance of probabilities that Mr Calliess’ alcohol dependence or alcohol abuse was causally connected to his eligible defence service by Mr Calliess experiencing a severe stressor within one year immediately prior to the clinical onset or clinical worsening of alcohol dependence or alcohol abuse. The severe stressors that Mr Calliess claimed to experience occurred on his tour of operational service which concluded on 19 May 1971 or prior to that service in 1969. In either case, those events occurred more than one year before the commencement of his eligible defence service and are not, therefore consistent with factor 5(b) of SoP2.
conclusion
78. On the balance of probabilities Mr Calliess suffers from alcohol dependence. There is a reasonable hypothesis connecting his alcohol abuse with the circumstances of his operational service. There is nothing to disprove that hypothesis beyond reasonable doubt, in consequence of which Mr Calliess’ alcohol abuse is war caused. I am satisfied, on the balance of probabilities, that Mr Calliess’ alcohol dependence is connected with the circumstances of his eligible defence service as he was suffering from the war caused psychiatric disorder of alcohol abuse at the time of the clinical onset of alcohol dependence during the period of his eligible defence service.
79. On the balance of probabilities Mr Calliess does not suffer from PTSD in consequence of which his claim that that condition is war caused or defence caused is without merit.
80. Mr Calliess is seeking a determination of the degree of incapacity and the rate of disability pension that is payable pursuant to s.21A. However, there is insufficient evidence before me on which to make any such determination.
I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Simon Webb, Member.
Signed: Z. Khan
AssociateDate/s of Hearing 2 and 3 September 2004
Date of Decision 17 September 2004
Representative for the Applicant Mr K. Johnson
Representative for the Respondent Mr N. Bunn
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