Constable and Repatriation Commission
[2008] AATA 1099
•9 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1099
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 2005/0485
VETERANS’ APPEALS DIVISION )
Re ROBERT PATRICK CONSTABLE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Carstairs, Senior Member Date9 December 2008
PlaceBrisbane (heard in Townsville)
Decision The Tribunal affirms the decision under review.
.....................[sgd].........................
SENIOR MEMBER
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – alcohol abuse/dependence – diagnosis – whether alcohol abuse war-caused – clinical onset of alcohol abuse – whether reasonable hypothesis – Deledio step 4 – decision affirmed
Veterans’ Entitlements Act 1986 (Cth), ss 9, 19, 120, 196B
Constable and Repatriation Commission [2004] AATA 1151
Constable v Repatriation Commission [2005] FCA 928
Repatriation Commission v Constable (2006) 151 FCR 391
Repatriation Commission v Gorton (2001) 65 ALD 609
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Milenz [2006] FCA 1436
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Norton [2008] FCA 1132REASONS FOR DECISION
9 December 2008 M J Carstairs, Senior Member 1. This is the re-hearing of Robert Patrick Constable’s application for review of the rejection of his claim for disability pension for “alcohol abuse” disorder. Mr Constable says his alcohol disorder resulted from his operational service with the Australian Army in Vietnam between July 1969 and July 1970. The Federal Court set aside my first decision on Mr Constable’s matter[1]. The Full Federal Court confirmed that there had been an error of law, warranting the matter being re-heard[2].
[1] The relevant citations are: Constable and Repatriation Commission [2004] AATA 1151; Constable v Repatriation Commission [2005] FCA 928; Repatriation Commission v Constable (2006) 151 FCR 391.
[2] Repatriation Commission v Constable (2006) 151 FCR 391.
2. Central to Mr Constable’s contention of there being a relationship between defence and service was his experience of an incident that occurred during one of his weekly trips travelling between Vung Tau and Nui Dat as a driver/storeman. I have referred to this as “the Land Rover incident”. He described what happened as follows[3]:
7. On one trip to Nui Dat I recall an incident that occurred as I was approaching a bridge near the vicinity of Baria. A Land Rover was rapidly approaching the bridge from the opposite direction sounding its horn in what appeared to be an urgent manner. I bought [sic] my vehicle to a halt prior to entering the bridge. As the vehicle passed I could see 3 wounded troops in the vehicle. I recall that I could clearly see the bandages that were wrapped around their body parts (including their heads) were soaked in blood. I felt physically upset as the vehicle passed me. Whilst I had previously seen wounded in hospital (for example when mates required attention at the hospital in Vung Tau), this was different. I felt sick in my stomach.
8. In my dreams I often see this scene repeated, though the vehicle is driving on the wrong side of the road as it passes me. Even today when thoughts of that incident intrude upon my daily life, I feel ill.
[3] Exhibit A1 at 98-99 (dated 18 December 2003).
3. Mr Constable’s hypothesis about this incident was formulated on the basis that[4]:
§ his exposure to wounded in Vietnam, in particular his observation of the Land Rover incident, carrying wounded in an urgent manner, gave rise to feelings of horror and led to his developing an alcohol disorder within 2 or 5 years of his Vietnam service[5].
[4] Exhibit A1 at 111; Exhibit A3 (Applicant’s Supplementary Statement of Facts and Contentions).
[5] 5 years being the time provided for under the current Statement of Principles; 2 years under the previous Statement of Principles.
4. In Constable I concluded that the Land Rover incident did not fit within the meaning of “experiencing a severe stressor” as defined in the applicable Statement of Principles for alcohol dependence and alcohol abuse: Instrument No. 76 of 1998, (“the previous Statement of Principles”). The Federal Court decided that I had erred in interpreting that phrase; a point with which the Full Federal Court essentially agreed.
5. The error of law identified was two-fold. Firstly, the Federal Court held that I had erred in concluding that the Land Rover incident did not amount to “casualty clearance” (as referred to as one example of “severe stressor” in the definition in the previous Statement of Principles). Secondly, there was error identified in what I said with reference to Mr Constable’s reaction to the Land Rover incident.
6. The Repatriation Medical Authority has since revoked the previous Statement of Principles. The Statement of Principles that I must now apply, in the first instance, is Instrument No. 17 of 2008 (“the current Statement of Principles”), effective from 5 March 2008. Only if Mr Constable’s claim fails under the current Statement of Principles, must I then consider his claim under the previous Statement of Principles[6].
[6] Repatriation Commission v Gorton (2001) 65 ALD 609 at 610.
7. Statements of Principles are applied in order to decide questions of war-causation, and to this end the Statements are “the statute-backed declaration of what is proved or known scientific fact”[7]. They are formulated with respect to a range of medical and psychiatric conditions, and set out the medically identified factors known to cause or contribute to the development of such conditions. Put simply, Statements of Principles provide for recognised connections with service, and any hypotheses raised in Mr Constable’s case must match with one or more of the factors set out in either the current or previous Statements of Principles for alcohol abuse or dependence.
[7] Repatriation Commission v Deledio (1998) 83 FCR 82 at 96.
8. Taking into account the nature of what is the main hypothesis in Mr Constable’s case[8], the evidence must indicate:
§ that in the Land Rover incident Mr Constable experienced “a category 1B stressor”, as defined in the current Statement of Principles as being a “severe traumatic event”, and exemplified amongst other things, by being an eyewitness to:
(i)viewing “critically injured casualties”; or
(ii)“the clearance of critically injured casualties”;
§ alternatively, under the previous Statement of Principles, that the Land Rover incident and Mr Constable’s reaction to it came within the meaning of “experiencing a severe stressor”.
[8] I am mindful that some reliance was placed on an alternate hypothesis, which was not abandoned, in submissions. I deal with this alternative hypothesis below at [57] – [60].
9. I should say here that, to my mind, the Full Federal Court’s decision puts beyond question, at least with respect to the previous Statement of Principles, despite its definitional ambiguities[9], that the Land Rover incident formed part of casualty clearance, and came within the previous Statement of Principles definition of “experiencing a severe stressor”. This was so because casualty clearance was one of the specifically identified examples and therefore qualified as a severe stressor[10].
[9] As referred to by the Full Federal Court in Repatriation Commission v Constable (2006) 151 FCR 391.
[10] Repatriation Commission v Constable (2006) 151 FCR 391at 401-402.
10. As to the current Statement of Principles, with its new reference to a “category 1B stressor”, Ms H Bowskill of counsel, who appeared for the Repatriation Commission, pressed the submission that the Land Rover incident did not amount to witnessing “critically injured” soldiers, or their clearance as casualties. However I do not agree. Given the role of Statements of Principles, posing, as they do, possible causative connections (without fact finding), I consider I ought apply a common sense approach. To do otherwise might see the claim ruled out too early. Mr Constable’s evidence suggests that the soldiers he observed had serious rather than trivial wounds. There were head injuries at least to the front passenger being transported in the Land Rover. That suggests critical injuries and Mr Constable’s claim ought not to be excluded on some more rigorous standard than is called for by the expression “critically injured casualties”.
11. In that regard I agree with counsel for the applicant, Mr D Honchin’s submission that the terms of the current Statement of Principles are not so much at variance from those of the previous Statement of Principles as would warrant different treatment than the approach outlined by the Full Federal Court. The evidence in my view points to Mr Constable observing “casualty clearance” involving critically injured soldiers and in that regard his experience of the Land Rover incident was not outside the meaning of “a category 1B stressor”.
12. However it was also necessary, as I have indicated, for the evidence to point to the “clinical onset” of Mr Constable’s alcohol disorder being:
§ within 5 years of experiencing the Land Rover incident (under the current Statement of Principles); or
§ within 2 years (under the previous Statement of Principles).
THE ISSUES
13. With these matters in mind, the issues which I now must decide can be confined to:
(a)the precise diagnosis of Mr Constable’s alcohol disorder;
(b)whether his alcohol disorder is war-caused, determined by applying the process as set out in Repatriation Commission v Deledio[11] – in particular the steps referring to:
(i)whether a hypothesis of war-causation for an alcohol disorder is raised by the material;
(iii) whether the raised hypothesis is consistent with the requirements of applicable Statements of Principles; and
(iv) whether it is proved, beyond reasonable doubt, that Mr Constable’s alcohol disorder is not war-caused.
[11] Repatriation Commission v Deledio (1998) 83 FCR 82 at 82.
14. Questions of war-causation refer to the kinds of connections posed within s 9 of the Veterans’ Entitlements Act 1986 (“the Act”); and mirrored in s 196B(14) of the Act, in particular whether disease or injury “resulted from an occurrence that happened while the veteran was rendering operational service” or whether disease or injury “arose out of, or was attributable to, any eligible war service”.
15. However, the first thing that must be shown is the nature of disease or injury. In previous hearings the aspect of diagnosis had not been contentious; however it proved to be so at this hearing.
DIAGNOSIS
16. The condition of “alcohol abuse” had been the accepted terminology at all levels of review, but now it was necessary to consider whether Mr Constable suffered from “alcohol abuse” or whether his condition was “alcohol dependence”. This was because Dr M Likely, who in the past routinely diagnosed Mr Constable as suffering alcohol abuse, referred to the condition as being “alcohol dependence” at the hearing.
17. Furthermore Mr Constable’s circumstances have changed to such an extent that the two psychiatrists (Dr M Likely, treating psychiatrist, and Dr P Mulholland, consultant psychiatrist), now agree that Mr Constable no longer suffers the symptoms of any active alcohol disorder.
18. Mr Constable has been in gaol since 2005 and has had no access to alcohol in that time. Other factors that have come into play include that, while serving his term of imprisonment:
§ he has undergone heart surgery to replace an aortic valve;
§ he has had abdominal surgery for severe gastro-oesophageal reflux;
§ he has been told that alcohol is not recommended to be taken with his heart medication; and
§ he has formed the intention that he will continue to abstain from alcohol even when he is released.
19. Mr Constable believes that, with the support of his family, he will not resume drinking. Both psychiatrists describe his long-standing alcohol disorder as now being “in remission”[12].
[12] Reports of psychiatrists Dr M Likely (Exhibit A2) describes it as “in full remission” and Dr P Mulholland, (Exhibit R2) describes it as “in a remission situation for 3 years”.
20. Whilst it is somewhat unusual that a veteran, having overcome an active disorder, would seek pension payments for it, under the Act, any claim must be examined in the “assessment period”[13], a period that starts at the date of the claim, which in Mr Constable’s case was 17 February 2003[14]. In the earlier part of the assessment period, Mr Constable did have an active psychiatric disorder. Accordingly, there may be consequences for the assessment of his pension entitlements in that regard.
[13] Veterans’ Entitlements Act 1986 (Cth), s 19(9).
[14] Exhibit A1 at 88-95.
21. With respect to whether the primary diagnosis is alcohol abuse or alcohol dependence, having regard to the evidence of both doctors, I accept Dr Mulholland’s view that Mr Constable suffered from alcohol abuse. His was a more consistent, logical and evidence-based reasoning process than was apparent in the formation of Dr Likely’s more recent opinion favouring “alcohol dependence”. Dr Mulholland drew upon more sources. For instance, he interviewed Mrs Constable, who told him that her husband had periods where he moderated his drinking. In the 1990s he was able to do so for a number of years after he developed cancer of the larynx, which suggests a pattern of abuse, rather than dependence.
22. Ultimately Dr Likely gave no reasoned explanation for his changed diagnosis. It was a particularly remarkable shift of opinion when both psychiatrists agree that Mr Constable now has insufficient symptoms to diagnose any present alcohol condition[15]. In the course of his evidence Dr Likely made the candid, but hardly commendable, observation that he tends to simply adopt the language used by the person communicating with him when requesting a report.
[15] Transcript of Hearing, 23 July 2008, at 22.
23. I was satisfied, accepting Dr Mulholland’s evidence, that the better view is that Mr Constable has suffered from an “alcohol abuse” disorder, which is now in remission, and presently there are no active symptoms of the condition.
24. I will turn now to that aspect of diagnosis as it related to the question of clinical onset. This needed to be considered as part of Mr Constable’s hypothesis, particularly whether it was a “reasonable hypothesis”[16]. In that regard, the concept needed to be addressed within the 4-step process referred to in Repatriation Commission vDeledio[17].
[16] Veterans’ Entitlements Act 1986 (Cth), s 120(3).
[17] Repatriation Commission v Deledio (1998) 83 FCR 82 at 82.
STEPS 1-3: WAR-CAUSATION
25. The 1st step is an enquiry as to whether there is a hypothesis raised by the material. Ms Bowskill submitted that the evidence did not suggest such an hypothesis was raised by the material in Mr Constable’s case. She submitted Mr Constable’s case fails at step 1.
26. I do not agree. It is important at this stage to recall the elements of the hypothesis, however roughly framed, as I set it out at paragraph 3 (above). The occurrence of the Land Rover incident, as part of the hypothesis, was not seriously questioned. The evidence about Mr Constable’s drinking, and aspects relating to “clinical onset” of an alcohol disorder, whilst able to be construed in more than one way, according to Dr Mulholland’s and Dr Likely’s opinion, was not fanciful. I thought both doctors struggled with that aspect of their evidence; nevertheless the diagnosis of an alcohol disorder itself was not seriously contested.
27. Typically, within the Statements of Principles, a common sequence of causation will be expressed in the form:
§ Experiencing “A” before the clinical onset/clinical worsening of “B”.
In the previous and current Statements of Principles this was expressed in the form “experiencing a stressor”/“category 1B stressor” within 2 (or 5) years of the clinical onset of alcohol abuse. The several elements that might make up the expressed sequence in the hypothesis, were pointed to by different aspects in the evidence, as I indicate above.
28. Mr Constable’s was not a case, therefore, that simply failed at step 1 of the Deledio steps. In my view, his case required examination under the 2nd and 3rd steps of the Deledio process.
DOES THE HYPOTHESIS MATCH THE TEMPLATE?
29. The 2nd step can be passed over quickly, acknowledging that the current and previous Statements of Principles were relevant and applicable. It was the 3rd step which entailed controversy. At that step it was necessary to examine whether the hypothesis was a reasonable one, that is, consistent with the template(s). “Clinical onset” of any alcohol abuse disorder featured prominently in this consideration.
30. Relevant case law makes plain, that “clinical onset” and “clinical worsening” are medical issues, requiring diagnostic judgement[18]. The terms refer to the time at which a person’s constellation of symptoms is such that a medical practitioner would have diagnosed the particular disease as present or as having worsened[19]. Recent Federal Court decisions emphasise the importance of differentiating the exact nature of the medical condition in issue[20]. There is a tendency with alcohol abuse and dependence to ignore the difference between the two diagnoses. As the Statements of Principles make plain, alcohol abuse can only be diagnosed if “the symptoms have never met the criteria for alcohol dependence”.
[18] Repatriation Commission v Milenz [2006] FCA 1436.
[19] Repatriation Commission v Cornelius [2002] FCA 750.
[20] Repatriation Commission v Milenz [2006] FCA 1436; Repatriation Commission v Norton [2008] FCA 1132.
31. “Alcohol abuse” is defined by the following indicators[21]:
[21] Statement of Principles Instrument No. 17 of 2008. The definition in the previous Statement of Principles is similar.
A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:
(1) Recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to alcohol use; alcohol-related absences, suspensions, or expulsions from school; neglect of children or household).
(2) Recurrent alcohol use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by alcohol use).
(3) Recurrent alcohol-related legal problems (e.g., arrests for alcohol-related disorderly conduct).
(4) Continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the alcohol (e.g., arguments with spouse about consequences of intoxication, physical fights).
B. The symptoms have never met the criteria for alcohol dependence.
32. The timing of “clinical onset”, as will be seen below, was in dispute chiefly because Mr Constable admitted that he commenced drinking well before his Vietnam service, and was consuming significant quantities of alcohol during his service in Papua New Guinea (PNG).
33. Mr Constable’s personal recollections regarding his history of alcohol consumption were presented in his answers to an “Alcohol Questionnaire”[22], dated 3 December 1999, in a claim for “substance abuse”. The relevant questions and his answers were as follows (observing that Mr Constable’s service in Papua New Guinea took place in 1963-1964)[23]:
[22] Exhibit A1 at 54-56.
[23] Exhibit A1 at 54-56.
Question 2. When did you start to drink alcohol? PNG
Question 3. What alcohol did you drink? Beer.
Question 4. How much did you drink? 6 beer per day.
…
Question 6. Do you consider that your alcohol consumption was due to, or contributed to, by your service? Yes
…If so please explain why:
I went from a non drinker to drinking 6 beers per day in PNG in 1963. My alcohol consumption increased while in PNG to relieve stress of active service.
First started to drink 1963 in PNG 1963.
1963 – 6 beers per day
1963 – 10 beers per day
1964 – 10 beers per day
1969 – 15 beers per day & 4 to 5 Scotch per day
1970 – 15 beers per day & 4 to 5 Scotch per day
1971 – 20 beers per day
1990 – 4 to 5 beers per day} Drop in consumption due to throat cancer
1999 – 4 to 5 beers per day} Drop in consumption due to throat cancer
34. Mr Constable provided other details, in his written statement dated 18 December 2003, about the pattern of his drinking in Vietnam[24]:
In Vung Tau and elsewhere in South Vietnam, alcohol was relatively cheap and easy to obtain. I recall that I began to drink heavily whilst in country. To my mind, that was to forget what was happening around me and to forget the fear and apprehension I would often experience. I would often use alcohol to help me to fall asleep of an evening. I recall that around Christmas of 1969 I noticed that my drinking was getting out of hand. I was drinking every afternoon and every night.
…
On return to country I sought a transfer to Nui Dat as I believed at the time that I would get away from such easy and cheap access to alcohol. I was wrong.
[24] Exhibit A1 at 99.
35. Mr Constable’s service records indicated that the “return to the country” mentioned in his written statement was in March 1970 after of week of recreation leave in Australia. Mr Constable gave evidence that made the request for transfer to Nui Dat after the Land Rover incident (that incident having taken place towards the end of 1969). This accorded with his evidence at the previous hearing, and with what he had told Dr Mulholland and Dr Likely[25]. Mr Constable told Dr Mulholland that at Nui Dat he was drunk about 3 days per week rather than every day as in Vung Tau.
[25] Exhibit A1 at 30.
36. As to the views of medical practitioners concerning “clinical onset”, Dr Likely admitted that he had not turned his mind to the question. Dr Likely said that he had been unaware of the existence of Mr Constable’s answers provided on the Alcohol Questionnaire until questioned about the document’s contents at the hearing. He was aware, however, and had recorded in his written reports in 2004[26], that Mr Constable’s drinking had markedly escalated whilst he was in Vietnam. But, Dr Likely’s reports did not address when Mr Constable might be diagnosed as first having had an alcohol disorder.
[26] Exhibit A1 at 104-105 and 106-108.
37. When questioned further on this at the hearing Dr Likely at first ventured the opinion that Mr Constable was probably suffering from “alcohol abuse” in 1963. Dr Mulholland was also questioned about Mr Constable’s answers on the Alcohol Questionnaire, and he remarked that Mr Constable’s reported level of drinking (from the time of arrival in Vietnam) was “pretty close” to an abusive level of intake. Dr Mulholland ventured the opinion that if looked at by a mental health professional at the time, Mr Constable could have warranted that diagnosis.
38. In saying that, Dr Mulholland recognised that a diagnosis of an alcohol disorder is not determined simply by quantities of alcohol consumed. However, with reference to the requirements of the definition of “alcohol abuse”, Dr Mulholland did observe there was a connection with quantity on the following basis: a person drinking to the levels Mr Constable described, and being intoxicated on a daily basis would be affected in his work. This was despite the fact that the Army might not have picked up the problem.
39. The two psychiatrists were asked a number of questions about what Mr Constable’s request for transfer to Nui Dat might have meant in terms of clinical onset. Dr Mulholland said that Mr Constable’s request for a transfer would be consistent with him recognising his alcohol problem. He thought it was a significant marker, demonstrating self-recognition of problem drinking. Dr Mulholland thought it was not evidence of “clinical worsening” because, he said, Mr Constable had been drinking as much as he possibly could from the time he arrived in Vietnam.
40. In the end, when considering the questions raised at the 3rd step of Deledio, I must consider the whole of the material, having regard to the supporting and opposing material to examine if the hypothesis is reasonable. The material is not confined to evidence favourable to the applicant. The factor in the current Statement of Principles required the clinical onset of alcohol disorder within 5 years. The evidence did not point, in my view, to clinical onset as being after Mr Constable’s experience of a category 1B stressor (the current Statement of Principles), or a severe stressor (the previous Statement of Principles). Rather, the evidence pointed to Mr Constable having an entrenched condition of alcohol abuse following several months of heavy drinking in Vung Tau, before the Land Rover incident took place. The evidence pointed to his condition being sufficiently maladaptive, and for a long enough period, as he himself identified by his request for a transfer some months before his tour of duty came to an end. That request was unrelated, in any meaningful way, to the Land Rover incident. I concluded that the hypothesis was not a reasonable hypothesis.
41. My conclusions with respect to the 3rd step of Deledio mean that it is unnecessary to consider the 4th and final Deledio step. Nevertheless I have given consideration to the final step below.
STEP 4: WAR-CAUSATION – NO SUFFICENT GROUNDS
42. The final stage for determining causation involves finding facts after considering all the evidence in relation to the hypothesis.
43. With respect to Mr Constable’s evidence, I would make the general observation that he has been consistent in his descriptions about the Land Rover incident. I was struck particularly by how similar in many respects were his accounts given to both psychiatrists, from the time Mr Constable was first seen by Dr Likely in 1999. His was not a case that suggested any exaggerated embellishment over time in retelling what happened. He has been forthright in his account of his drinking habits before and during his Vietnam service.
44. Mr Constable told both psychiatrists that he was apprehensive in Vietnam and dealt with this by increasing his alcohol intake, to levels that were greater than he had imbibed at previous times. It will be recalled that in PNG he was drinking 10 beers per day – already a high level of intake. Mr Constable told the psychiatrists repeatedly that when he went to Vietnam he was drinking as much as he could, right from the start of his tour of duty. He gave as reasons the cheapness and availability of alcohol there. His answers in his Alcohol Questionnaire indicated that in Vietnam he increased the quantity of beer, and started drinking spirits. His was a high alcohol intake right from the start of his service in Vietnam.
45. A perusal of respective reports of the psychiatrists is instructive. Dr Likely had first examined Mr Constable in 1999, and he also noted that Mr Constable was “unable to recall any particular events which upset him” in his Vietnam service, even in the context of Mr Constable telling Dr Likely about his observation of wounded soldiers in the Land Rover incident[27]. Dr Likely reached the same conclusion in a subsequent report[28]:
I specifically questioned Mr Constable once more regarding aspects of his service in Vietnam, in particular an attempt to isolate any traumata. However he did not report any information other than that outlined in my initial report to your office. He stated that the most distressing consequence of his service in Vietnam was recurrent intrusive thoughts, regarding the sight of wounded soldiers being carried in Land Rovers. However as mentioned in my report of November of 1999, his response at the time of the incident did not involve feelings of fear, helplessness or horror.
[27] Exhibit A1 at 30.
[28] Exhibit A1 at 102.
46. Dr Mulholland’s first report was completed in 2004[29] and made similar observations, that Mr Constable:
…reported that there is no particular event of any over-riding significance in Vietnam except for the disturbing sight of seeing wounded Australians in a Land Rover.
[29] Exhibit A1 at 121-133 (Report dated 20 May 2004).
47. There was little in Mr Constable’s several accounts given to psychiatrists that could be said to link his increase in his alcohol consumption to the experience of the Land Rover incident. Mr Constable had told Dr Mulholland in 2004 that he suffered chronic anxious apprehension during his time in Vietnam. He told him about his “marked” increase in alcohol consumption, particularly at Vung Tau where he was drunk every day (from July 1969 to March 1970[30]). Mr Constable did not specifically draw any link between his coming to realise that he had an alcohol problem (leading to his request for transfer to Nui Dat) and anything to do with his experience of the Land Rover incident.
[30] Exhibit A1 at 26 read with Exhibit A1 at 98-100.
48. It is true that Mr Constable recollected the Land Rover incident as happening towards the end of 1969 and before his request for transfer. I have no reason to doubt his recollections. It is true, also, that he identified that he was drinking to problem levels in Vung Tau and his drinking was getting out-of-hand by Christmas 1969[31]. The psychiatrists both regarded his request for a transfer to Nui Dat as being of some significance, in the sense that Mr Constable was recognising he had a problem level of drinking. However I do not accept that self-recognition of an alcohol problem identifies “clinical onset” in any particular way. It is not, for instance, a requirement of the diagnostic criteria that a person have identified their problem.
[31] Exhibit A1 at 99.
49. I accept Dr Mulholland’s evidence that Mr Constable’s levels of drinking in Vietnam were such that a mental health professional might have diagnosed alcohol abuse then. That conclusion is supported by Mr Constable’s evidence, as told to Dr Mulholland, that while stationed in Vung Tau he was drunk every day. Mr Constable had made the same observation to Dr Likely, stating that he was consuming a carton of beer on his days off and something less when on duty. I am unable to conclude that the clinical onset of Mr Constable’s alcohol abuse was after his experience of the Land Rover incident.
50. In the context of his Army service, apparently surrounded by other heavy drinkers, Mr Constable’s consumption might not have been remarked upon or noted, in the ways anticipated by the diagnostic criteria. This however does not detract from his pattern of alcohol consumption being a “maladaptive pattern”. Common sense suggests that Mr Constable was, from the beginning of his Vietnam service, recurrently using alcohol “in situations in which it was physically hazardous”. His own recognition was important, but I do not accept that there is anything that connects the timing of his request for a transfer to Nui Dat with the Land Rover incident so as to suggest the Land Rover incident was part of a causal chain that might connect that event with the development of disease.
51. In truth, Mr Constable himself has never made such a claim. His case has always been that he drank as much as he could right from the start of his service, because he was apprehensive and on edge. It may well be true that he did not fully recognise his problem until later, after the time of the Land Rover incident, however there is nothing in his evidence to suggest this was other than a temporal sequence.
52. Nothing in Dr Likely’s evidence caused me to conclude otherwise. Dr Likely had not turned his mind meaningfully to the question of clinical onset. His oral evidence traversed the range of possible dates, starting from his first thought that Mr Constable’s alcohol condition was present in 1963. Dr Likely was in many respects a very unsatisfactory witness, although I appreciate that he had little opportunity to give the issue deep consideration when faced with it for the first time in the course of his giving evidence. He was unconvincing in his attempt to draw a connection between the Land Rover incident and Mr Constable’s request for a transfer to Nui Dat. Dr Likely readily agreed that that he was only making an “assumption” that Mr Constable’s request for a transfer was an acknowledgement his part that his alcohol intake had escalated to dangerous proportions after the Land Rover incident. It was not apparent that Mr Constable had ever made such a claim to Dr Likely. Dr Likely’s assumption lacked foundation.
53. I was satisfied beyond reasonable doubt that Mr Constable had an alcohol abuse condition before the Land Rover incident. In reaching that conclusion I accept Dr Mulholland’s evidence that Mr Constable’s high consumption meant an alcohol abuse disorder would have been present after about three to four months in Vietnam. Dr Mulholland was not suggesting that this could be exactly or specifically determined, but his evidence was clear in this respect: clinical onset was early in Mr Constable’s deployment to Vietnam.
54. Taken with Mr Constable’s own evidence, Dr Mulholland’s evidence about the course of the disease process and likely date of clinical onset, is evidence inconsistent with the hypothesis. The evidence taken as a whole disproves the hypothesis beyond reasonable doubt: Mr Constable had an established alcohol abuse condition before the Land Rover incident took place.
55. I was satisfied beyond reasonable doubt that there was no sufficient ground for determining that Mr Constable’s alcohol abuse was war-caused.
56. I would observe, before leaving the question, that in view of the conclusions that I have reached about clinical onset, the evidence also did not point to “clinical worsening”. Dr Likely commented that Mr Constable’s pattern of drinking might amount to an “escalation”, when posted to Vung Tau, and a further “escalation” after the Land Rover incident. However, there was no clear reference to Mr Constable increasing his intake of alcohol after the Land Rover incident. “Clinical worsening” needed to be pointed to by the evidence, and it was not. That hypothesis could not be “reasonable” – step 3 of Deledio.
THE OTHER HYPOTHESIS – SUFFERING A PSYCHIATRIC DISORDER
57. I have mentioned in passing that there was another possible hypothesis. It ran as follows:
§ Mr Constable had been exposed to casualties/ wounded in South Vietnam and had been affected by the then recent death of his cousin George Constable in the Tet Offensive (as well as that of another friend in Vietnam) before being sent to Vietnam himself. This led to him having a generalised anxiety disorder during his Vietnam service, which he treated with alcohol, leading to the development of alcohol abuse.
58. In my view, this hypothesis, which Mr Honchin acknowledged was not now pressed in the applicant’s case, failed at step 1 of the Deledio steps. This is so because there was no evidence that Mr Constable had:
§ “a clinically significant psychiatric condition at the time of the clinical onset of…alcohol abuse” – as required in the current Statement of Principles; or was
§ “suffering from a psychiatric disorder...” at that time – as required in the previous Statement of Principles.
59. Dr Likely expressly stated in his oral evidence that he did not consider that Mr Constable was suffering from an anxiety disorder during his Vietnam service. Dr Likely firmly identified Mr Constable’s several other psychiatric conditions (diagnosed from time to time in his written reports: panic attacks, generalised anxiety disorder, and depression) as being related to Mr Constable’s declining physical health, and, more recently to his experiences in gaol. Dr Likely’s opinion was that Mr Constable’s psychiatric conditions (other than alcohol abuse) are of recent onset. Dr Mulholland was unable to diagnose Mr Constable as having sufficient symptoms for any psychiatric disorder other than alcohol abuse.
60. “Depression” is a condition accepted as related to Mr Constable’s service, but the acceptance was based however on its relationship to Mr Constable’s malignant neoplasm of the larynx. The onset was in the 1990s[32].
[32] Exhibit A1 at 148.
DECISION
61. For these reasons, the Tribunal affirms the decision under review.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member
Signed:......................[sgd].........................................................
Joan Torbey, AssociateDate of Hearing 23 July 2008
Date of Decision 9 December 2008
Counsel for the Applicant Mr D Honchin
Solicitor for the Applicant Purcell Taylor Lawyers
Counsel for the Respondent Ms H Bowskill
Solicitor for the Respondent Australian Government Solicitor
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