KALUZA Applicant And REPATRIATION COMMISSION
[2010] AATA 498
•2 July 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 498
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2006/840
VETERANS’ APPEALS DIVISION ) Re STANISLAW KALUZA Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member
Dr M E C Thorpe, MemberDate 2 July 2010
PlaceSydney
Decision The Tribunal varies the decision under review to find that Mr Kaluza suffers anxiety disorder, alcohol abuse and hypertension. The Tribunal finds that none of those conditions are war-caused.
..................[sgd]..........................
Ms G Ettinger Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Limited Remittal - Remittal on dates of operational service – Veterans’ entitlement – Disability Pension – Operational and Eligible Service – Reasonable hypothesis - Statements of Principles – Diagnosis – no PTSD – Veteran suffers Anxiety Disorder, Hypertension & Alcohol Abuse which are not war-caused – Decision under review varied.
Veterans’ Entitlements Act 1986 ss 5D, 6C, 9, 120, 120(1), 120(3), 120(4), 120A
Statement of Principles concerning Anxiety Disorder - Instrument No. 1 of 2000, Instrument No.101 of 2007
Statement of Principles concerning Alcohol Dependence and Alcohol Abuse - Instrument No. 76 of 1998, Instrument No.17 of 2008, Instrument No.1 of 2009
Statement of Principles concerning Hypertension - Instrument No.35 of 2003 as amended by Instrument No.3 of 2004, Instrument No.11 of 2008
Byrnes v Repatriation Commission (1993) 177 CLR 564
Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; (2006) 235 ALR 750
Deledio v Repatriation Commission (1997) 47 ALD 261
Gorton v Repatriation Commission (2001) 63 ALD 723
Kaluza v Repatriation Commission [2008] FCA 1365; (2008) 171 FCR 168
Lees v Repatriation Commission (2002) 125 FCR 331
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374
Peacock v Repatriation Commission (2007) 161 FCR 256
Re Kaluza and Repatriation Commission [2008] AATA 392
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley (2000) 60 ALD 401
Repatriation Commission v Nation (1995) 57 FCR 25
Repatriation Commission v Yates (1997) 46 ALD 487
Stoddart v Repatriation Commission (2003) 74 ALD 366
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178
Wang v Minister for Immigration and Multicultural Affairs (No. 2) (2001) 108 FCR 167
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
REASONS FOR DECISION
2 July 2010 Ms G Ettinger, Senior Member
Dr M E C Thorpe, MemberBACKGROUND
1. The matter before the Tribunal was the hearing of a remittal from the Federal Court, Kaluza v Repatriation Commission (2008) 171 FCR 168.
2. In the Tribunal’s decision of 14 May 2008, Re Kaluza v Repatriation Commission [2008] AATA 392, we held that Mr Kaluza does not suffer PTSD or alcohol dependence, but that he suffers anxiety disorder, alcohol abuse, and hypertension. However we found that none of the conditions claimed or diagnosed was war-caused.
3. Mr Kaluza appealed the decision of the Tribunal to the Federal Court, claiming that we had erred in law on two counts. He questioned as follows:
(a)Did the Tribunal err in law, in determining whether the applicant had operational service, in accordance with section 6C of the Veterans’ Entitlements Act 1986 (“the Act”), and the Instrument signed on 23 December 1997 under section 5B(2)(c) of the Act, by construing them as precluding a finding that a veteran had operational service if the specific date or dates of that service were not established, or if that service was not confirmed by service records or both;
(b)Did the Tribunal err in law, in determining whether the applicant had operational service in accordance with section 6C of the Veterans’ Entitlements Act 1986 (“the Act”), and the Instrument signed on 23 December 1997 under section 5B(2)(c) of the Act, by construing them as requiring a finding that operational service ceased if a veteran went from Vietnam to a place outside Australia, and there was no evidence as to whether the veteran performed duties in that place outside Australia associated with a continuing journey to Australia.
4. Justice Branson of the Federal Court (as her Honour then was), dismissed the first leg of the appeal, upheld the Applicant on the second, and remitted the matter to the Tribunal, stating that: Neither party identified a reason why, if the matter were remitted, it would be necessary for the Tribunal to be differently constituted or for further evidence to be adduced.
5. The hearing of the remittal took place on 3 May 2010 before the Tribunal as formerly constituted. Mr Kaluza was represented by Mr C Colborne, and the Respondent by Ms K Eastman, both of counsel. We had before us the T-documents, the Exhibits which had been before the Tribunal in 2008, and the Transcript of the hearing in 2008. As there was disagreement about the scope of the remittal, we have dealt first with that, in the paragraphs immediately below.
6. By way of background we note that Mr Kaluza is a 63 year old veteran who served in the Royal Australian Air Force (Air Force) from 29 August 1963 to 31 October 1983, and had both operational and eligible war service. He was an aircraft technician, and participated in several flights to Vietnam. He was seeking to have conditions he suffers accepted as war-caused.
7. The events which Mr Kaluza claimed as stressors occurred in the Hercules in which he was flying home from Vietnam in February 1969, and included the invitation to join three of his colleagues in a game of cards being played on the casket of a deceased soldier who was being repatriated. It was agreed by both parties that Mr Kaluza held an incorrect belief, at the time, about the identity of the deceased soldier in the casket.
8. A further stressor took place on another flight in 1968 according to Mr Kaluza. He claimed that on that occasion, he was confronted with approximately 20 wounded soldiers who were in various stages of injury, and were being evacuated.
ISSUES BEFORE THE TRIBUNAL
9. The issues which the Tribunal had to decide were:
· The scope of the remittal;
· The implications of Justice Branson’s decision on the dates of Mr Kaluza’s operational service;
· Whether the diagnosed conditions Mr Kaluza was found by the earlier Tribunal to be suffering, being anxiety disorder, alcohol abuse and hypertension, are war-caused pursuant to section 9(1) of the Veterans’ Entitlements Act 1986 (the Act), taking into account both the Veteran’s eligible and operational service.
10. We noted that the previously agreed date of effect for any condition found to be war-caused was 9 July 2003.
11. Because Mr Kaluza served on operational service, for him to succeed, the reasonable hypothesis test pursuant to section 120 of the Act, and the relevant Statements of Principles (SoPs), must be applied. There is no question that the diagnosis of his various conditions was established on the balance of probabilities, and that there was no appeal on those previously diagnosed, (section 120(4) of the Act and Repatriation Commission v Cooke (1998) 90 FCR 307).
THE SCOPE OF THE REMITTAL
The Respondent’s submissions
12. Ms Eastman argued that the remittal was on a narrow issue, and drew attention to Justice Branson’s judgment:
24. For the above reason, in determining whether the conditions from which Mr Kaluza suffers are war-caused, the Tribunal did not give consideration to the whole of the period during which Mr Kaluza is to be taken to have been allotted for duty in an operational area.
25. It is appropriate that the decision of the Tribunal be set aside and the matter remitted to the Tribunal. Neither party identified a reason why, if the matter were remitted, it would be necessary for the Tribunal to be differently constituted or for further evidence to be adduced. I therefore make no directions in these regards (see s 44(6) of the Administrative Appeals Tribunal Act).
13. Ms Eastman also drew attention to paragraph 16 of her Honour’s judgment, which states as follows:
16 The limited nature of Mr Kaluza’s statutory right of appeal means that he may not challenge the Tribunal’s findings of fact in this Court unless he can demonstrate that they are affected by an error of law. He has not so demonstrated. The Tribunal simply chose, in an entirely conventional way, to prefer evidence from one source over evidence from another. For this reason, Mr Kaluza’s appeal, so far as it relies on Question 1, fails.
14. As to the scope of the second appeal point; Ms Eastman drew attention to paragraph 17 of Justice Branson’s judgment which her Honour noted concerned the proper construction of paragraph 2 of Schedule B of the ‘Instrument of the Minister for Defence, Industry, Science and Personnel’ dated 23 December 1997, and made pursuant to section 5B(2)(c) of the Act (the Instrument). We noted that this related to the operational service Mr Kaluza undertook on his journey home from Vietnam commencing on 22 February 1969.
15. Ms Eastman submitted that if Justice Branson had intended a full rehearing take place, her Honour would have said so, and if she had required that further evidence be adduced, she would also have so specified. Ms Eastman submitted that, accordingly, the Tribunal’s considerations were limited to the impact of Mr Kaluza’s journey home from Vietnam, and his operational service in February 1969. She also drew attention to the fact that Justice Branson had not asked that the Tribunal be reconstituted for the appeal.
16. In support of her argument that the appeal was so limited, Ms Eastman referred the Tribunal to the cases of Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178, Repatriation Commission v Nation (1995) 57 FCR 25, Peacock v Repatriation Commission (2007) 161 FCR 256, and Repatriation Commission v Yates (1997) 46 ALD 487.
17. We noted Justice Basten’s judgment in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178. We are mindful that Walker Corporation concerned a valuation of land, and was an appeal from the Land and Environment Court, so that the differences between a Court and Tribunal were referred to. His Honour considered in detail in a section entitled “Nature of hearing on remittal”, the powers and the procedure to follow on remittal (paragraphs 26 – 40). Justice Basten noted that on occasion the reviewing Court will give directions as to how a matter is to be dealt with on a remitter, stating that that may give rise to its own difficulties, such as in the case of Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; 15 VR 207. His Honour also stated that it was commonplace for orders of remittal to be made without further indication to the Court below as to how it should proceed otherwise than according to law.
18. We noted also that in Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 and in Repatriation Commission v Yates (1997) 46 ALD 487, orders remitting the matter were held to require the whole matter to be heard and decided again.
19. Ms Eastman submitted that in Repatriation Commission v Nation (1995) 57 FCR 25, the remittal was that the matter be remitted to the Tribunal to be heard and determined according to law after admitting further evidence as it considered appropriate. She contrasted that with Justice Branson’s order in Kaluza v Repatriation Commission (2008) 171 FCR 168 which was not an order that the whole matter be remitted. She submitted from Nation, that where an order is ambiguous, it may be permissible to resort to extrinsic material, including the reasons for judgment to resolve the ambiguity… That did not apply to Justice Branson’s order, Ms Eastman submitted.
20. Ms Eastman also referred to Peacock v Repatriation Commission (2007) 161 FCR 256 where the Full Court held that a remittal to the Tribunal by a single Judge in terms such as the matter be remitted to the Tribunal for further consideration in accordance with law was an unqualified remittal. In the absence of some express qualification or limitation, it was for the AAT rehearing the matter to determine all questions of fact and law relevant to the appellant’s claim. We noted that the Full Court in Peacock also referred to Wang v Minister for Immigration and Multicultural Affairs (No.2) (2001) 108 FCR 167, and what Gleeson CJ had stated in Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518.
The Full Court ordered that the decision of the Tribunal be set aside, and the matter remitted to the Tribunal to be determined in accordance with law.
The consequence of that order was that the Tribunal, in dealing with the remitted matter, would be obliged to determine, in the light of the circumstances existing at the date of such new determination, and of the information before the Tribunal at that time, all questions of fact and law relevant to the respondent’s claim to refugee status.
The Applicant’s submissions
21. Mr Colborne disagreed with Ms Eastman, and argued that Justice Branson had remitted the matter to be heard according to law. He relied on Peacock v Repatriation Commission (2007) 161 FCR 256, where we noted the Full Court held that a remittal to the Tribunal by a single Judge in terms such as the matter be remitted to the Tribunal for further consideration in accordance with law was an unqualified remittal. In the absence of some express qualification or limitation, it was for the AAT rehearing the matter to determine all questions of fact and law relevant to the appellant’s claim.
The Tribunal’s decision on the scope of the remittal
22. We are mindful that the starting point in considering the nature of an order of remittal is the statutory conferral of power, and further, that in some remittals, directions are given as to how the matter is to be dealt with on the remittal. We note that this has caused difficulties at times, such as in the case of Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 235 ALR 750, as indicated by the Court in Walker Corporation. However, we are satisfied that Justice Branson was very clear in the findings her Honour made, and the terms of the remittal.
23. We are mindful that of the two questions appealed, Justice Branson found for the Applicant only on the second, that is, that the Tribunal erred in law in determining the Applicant’s dates of operational service, because the Tribunal did not give consideration to the whole of the period in February 1969 during which Mr Kaluza was to be taken to have been allotted for duty in an operational area. That is, the Tribunal did not take into account in determining Mr Kaluza’s operational service, the whole of the journey home between Australia and Vietnam which Mr Kaluza undertook between 22 and 26 February 1969. We are mindful that an important stressor which Mr Kaluza relied upon in order to establish that his conditions were war-caused took place on 24 February 1969, during that journey.
24. We noted that her Honour remitted the matter to the Tribunal as follows:
25. It is appropriate that the decision of the Tribunal be set aside and the matter remitted to the Tribunal. Neither party identified a reason why, if the matter were remitted, it would be necessary for the Tribunal to be differently constituted or for further evidence to be adduced. I therefore make no directions in these regards (see s 44(6) of the Administrative Appeals Tribunal Act)”. (our emphasis)
25. We accepted Ms Eastman’s submission that if Justice Branson had intended a full rehearing take place, her Honour would have said so, and that if she had required that further evidence be adduced, she would also have so specified. In fact her Honour specifically indicated that neither party had identified a reason why on remittal it would be necessary for further evidence to be adduced. Further, Justice Branson did not require that the Tribunal be reconstituted on remittal; in fact her Honour said relevantly: Neither party identified a reason why, if the matter were remitted, it would be necessary for the Tribunal to be differently constituted.
26. In coming to a decision regarding the scope of the remittal we have noted the submissions of both parties, and the relevant case law, such as Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178, Repatriation Commission v Nation (1995) 57 FCR 25, Peacock v Repatriation Commission (2007) 161 FCR 256, and Repatriation Commission v Yates (1997) 46 ALD 487.
27. We were mindful of the situation in, say, the case of Peacock v Repatriation Commission where the issue was whether the Tribunal, in reconsidering the matter on appeal, had erred in law by addressing particular issues, and exceeded its jurisdiction by considering issues which had not been remitted to it. We noted that the remittal had been for the Tribunal to further consider the matter in accordance with the law, which their Honours held, (in Peacock), to be an unqualified remittal. It was held therefore, in the absence of qualifications or limitation, the Tribunal rehearing the matter was able to determine all questions of fact and law relevant to the appellant’s claim (Peacock).
28. Similarly in Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518, Gleeson CJ indicated that the consequence of the order by the Full Court was that the Tribunal, in dealing with the remitted matter, would be obliged to determine, in the light of the circumstances existing at the date of such new determination, and of the information before the Tribunal at that time, all questions of fact and law relevant to the respondent’s claim to refugee status.
29. By contrast it was clear to us that Justice Branson qualified her remittal. We accordingly preferred the submissions of the Respondent regarding the limited remittal in Mr Kaluza’s case, and are satisfied that what we must do is limited to the acceptance of the Applicant’s flight home from Vietnam on 22 – 26 February 1969, in full, as operational service. In doing so, we rely on paragraph 38 of Walker where their Honours stated as follows:
Furthermore, in considering both the intended scope of a remitter and the appropriate scope of the hearing following remitter, a material consideration will often be the nature of the matter in dispute. Thus, a different approach may be taken in respect of a claim which is to be determined in accordance with the facts as they exist at the time of the remitted decision, as compared with a claim which involved the assessment of facts at a fixed time in the past. The present case falls into the latter category.
30. We accept the facts relating to Mr Kaluza and his evidence as they existed at the time of the Tribunal’s first decision, and remitted decision. His evidence regarding the stressors he experienced in 1969 cannot, in any case, be changed. We informed the parties that we would not require further evidence to be adduced, and are mindful that ultimately we must conduct proceedings as we see fit (section 33, Administrative Appeals Tribunal Act 1975). We must therefore consider the evidence surrounding the operational service flights in which Mr Kaluza participated in February 1969, and the stressors he claims as causing the conditions he suffers to be war-caused.
31. Remittals are different in each case, and must take into account the circumstances of the case. It is true in many circumstances the whole case is remitted. However in this case, the first leg of the appeal was not upheld, and Justice Branson remitted only the second, with a proviso that the Tribunal did not need to be reconstituted, and that no further evidence was necessary. We are satisfied that Justice Branson remitted the matter in a limited way, and have dealt with it accordingly.
WHAT ARE THE DATES OF MR KALUZA’S OPERATIONAL SERVICE
32. We noted that Mr Kaluza served in the Air Force from 29 August 1963 until 31 October 1983. His eligible defence service was from 7 December 1972 to 31 October 1983. As stated above, following the Tribunal’s decision in May 2008, Mr Kaluza appealed to the Federal Court. Justice Branson held that the Tribunal had erred in applying the Instrument, and stated:
24. …. in determining whether the conditions from which Mr Kaluza suffers are war-caused, the Tribunal did not give consideration to the whole of the period during which Mr Kaluza is to be taken to have been allotted for duty in an operational area. (our emphasis)
33. We are mindful that certain of Mr Kaluza’s service with No.37 Squadron, and his flights on Hercules aircraft to Vietnam and back were classified as operational service. We noted further that, for the guidance of decision makers, the Instrument specified as follows when each period commenced and ended.
1. The period commences:
(a) if the person was in Australia immediately before the person commenced the journey to Vietnam – on and from the date of the last port of call in Australia; or
(b) if the person was outside Australia immediately before the person commenced the journey to Vietnam - on and from the date that the person left that place outside Australia.
2. The period ends:
(a) if, immediately after the person left Vietnam, the person journeyed to a place outside Australia to perform duty not associated with a continuing journey to Australia – on the day that the person arrived at that other place outside Australia, or
(b) in any other case – on the day that the person arrived at the first port of call in Australia.
34. We had previously noted Mr Kaluza claimed that during the period he was posted to 37 Squadron at Richmond from 5 September 1966 until 3 September 1973, he made five or six flights to Vietnam between 1968 and 1971, which should be classified as operational service (Exhibit A1). Two such flights, being those undertaken on 22 February 1969 and 20 November 1970, were agreed by the Respondent.
35. There was a deal of evidence which we canvassed at the first hearing in regard to other flights which Mr Kaluza claimed qualified as operational service. Our findings in regard to those stand, and need not be repeated. We did not take further evidence in regard to those.
36. However, pursuant to Justice Branson’s decision, we now find that Mr Kaluza was on operational service for the duration of the flights to and from Vietnam in February 1969, in particular the flights between 22 and 26 February 1969. Of particular significance is the flight on 24 February 1969 from Butterworth to Pearce, which arrived there on 25 February 1969, and arrived in Richmond, Australia, on 26 February 1969. Accordingly we have concentrated on Mr Kaluza’s claims in regard to the flights on 20 November 1970, and 22 – 26 February 1969, during which we find Mr Kaluza was on operational service.
WHAT CONDITIONS DOES MR KALUZA SUFFER
37. We found on the first occasion when we heard Mr Kaluza’s claim that he suffers anxiety disorder, alcohol abuse and hypertension. Those diagnoses were made pursuant to section 120(4) of the Act, and applying the civil standard, being the balance of probabilities, to the reasonable satisfaction of the Tribunal. (Repatriation Commission v Cooke (1998) 90 FCR 307). We did not take any further evidence with regard to diagnosis into account in this remittal, and the previous diagnoses stand.
38. In order to determine the clinical onset of the conditions, we took into account the decision of Lees v Repatriation Commission (2002) 125 FCR 331 where the Court stated that all of the required symptoms had to be displayed, and treatment sought in order to determine clinical onset. We did not reconsider the dates we accepted for clinical onset at the time of the 2008 decision.
Anxiety Disorder: By way of completeness we note that we were satisfied from the evidence of the Veteran (given at the first hearing), a consideration of the tests in the DSM-IV for PTSD and anxiety disorder, and the reports of the doctors who treated and examined Mr Kaluza, that the preferred diagnosis was anxiety disorder. We accept that a psychiatric condition was established by 1968, but that it had first been treated in 1972, and that this is therefore the date of onset for purposes of the matter before us.
Alcohol Abuse: We were satisfied on the basis of Dr Dinnen and WG Cdr Isbister’s reports that Mr Kaluza’s alcohol abuse was established by 1972.
Hypertension: We noted that Mr Kaluza made a claim for hypertensive cardiovascular disease to be accepted as war-caused. The claim was rejected by the VRB, which reclassified the disease as hypertension, and decided that it was satisfied Mr Kaluza suffers from hypertension, with its clinical onset in approximately July/August 1972. In its decision in 2008, this Tribunal decided on the basis of the evidence before it that the Veteran suffers hypertension, and accepted Dr Butler’s opinion that when therapy was commenced in 1975 should be regarded as the clinical onset of hypertension (Lees).
LEGISLATION
39. A decision in this matter requires consideration of relevant provisions under the Veterans’ Entitlements Act1986. The definitions of injury and disease are in section 5D of the Act. The issue of whether a condition is war-caused (for Mr Kaluza) is determined pursuant to section 9 of the Act which relevantly follows:
9 War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
…
40. Section 6C(1) of the Act provides:
6C Operational service—post World War 2 service in operational areas
(1) Subject to this section, a member of the Defence Force who has rendered continuous full‑time service in an operational area as:
(a) a member who was allotted for duty in that area; or
(b) a member of a unit of the Defence Force that was allotted for duty in that area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full‑time service.
(2) A member of the naval, military or air forces of a Commonwealth country or of an allied country who:
(a) was domiciled in Australia or an external Territory immediately before his or her appointment or enlistment in those forces; and
(b) has rendered continuous full‑time service in an operational area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full‑time service.
(3) For the purposes of subsection (1), a member of the Defence Force is, subject to subsection (4), taken to have rendered continuous full‑time service in an operational area during the period commencing on:
(a) if the member was in Australia on the day (relevant day) from which the member, or the unit of the member, was allotted for duty in that area—on the day on which the member left the last port of call in Australia for that service; or
(b) if the member was outside Australia on the relevant day—on that day;
and ending at the end of:
(c) if the member, or the unit of the member, ceased to be allotted for duty—the day from which the member, or the unit, ceased to be allotted for duty; or
(d) if the member, or the unit of the member, was assigned for duty from the operational area to another area outside Australia (not being an operational area)—the day from which the member, or the unit, was assigned to that other area, or the day on which the member, or the unit, arrived at that other area, whichever is the later; or
(e) in any other case—the day on which the member arrived at the first port of call in Australia on returning from operational service.
…
41. The standard of proof applying in the case of operational service is the reasonable hypothesis as provided for by section 120 of the Act, which provides relevantly:
120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death 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 or that the death of the veteran was war‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by subsection 120A.
….
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, 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 a defence‑caused injury;
(b)that the disease was a war‑caused disease or a defence‑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.
Note: This subsection is affected by section 120A.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note:This subsection is affected by section 120A.
…
42. Section 120A of the Act deals with the Statements of Principles (“SoP”) and requires that an assessment of the reasonableness of an hypothesis must be undertaken with any Statement of Principles (SoPs) issued by the Repatriation Medical Authority (“the RMA”), or any other relevant determination or declaration under the Act. The relevant SoPs are discussed further on in these Reasons for Decision. As relevant, section 120A of the Act states:
120AReasonableness of hypothesis to be assessed by reference to Statement of Principles
…
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of 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) or (11); or
...
WHETHER MR KALUZA’S ANXIETY DISORDER, ALCOHOL ABUSE AND HYPERTENSION ARE WAR-CAUSED
43. Mr Kaluza served both on operational and eligible service. In regard to the operational service, the determination regarding whether his diagnosed conditions of anxiety disorder, alcohol abuse and hypertension are war-caused must be made taking into account the principles in Repatriation Commission v Deledio (1998) 83 FCR 82. We have previously found that Mr Kaluza does not suffer PTSD or alcohol dependence, so we do not need to deal further with those.
44. We were satisfied from the evidence before us in 2008 that Mr Kaluza did not have operational service in 1968, so any ill effects or illness he suffered from witnessing the transport of wounded soldiers on flights during that year cannot be held to be war-caused. Mr Kaluza also told us that his friend Noel was killed in Vietnam, but that he was not claiming this event as a stressor in relation to war-caused injury or disease. We have dealt below only with what we have held to be Mr Kaluza’s operational service, which was 22 – 26 February 1969, and 20 November 1970.
45. The steps as outlined by the Full Federal Court in Repatriation Commission v Deledio follow:
“…the course which the Tribunal is to take in a case, such as the present, (that is, one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person [is] as follows:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
46. With respect to determining when an hypothesis is reasonable, we noted Heerey J’s approach in Deledio v Repatriation Commission (1997) 47 ALD 261 which followed the “reasonableness” test approved in Byrnes v Repatriation Commission (1993) 177 CLR 564 and approved in Deledio (supra):
Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts;
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v) the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
The Statements of Principles
47. We accepted pursuant to the principles established in Repatriation Commission v Keeley (2000) 60 ALD 401 and Gorton v Repatriation Commission (2001) 63 ALD 723 and the relevant dates, that the following SoPs apply:
Statement of Principles concerning Anxiety Disorder, Instrument No.1 of 2000 and Instrument No.101 of 2007
Statement of Principles concerning Alcohol Dependence and Alcohol Abuse - Instrument No. 76 of 1998, Instrument No.17 of 2008, Instrument No.1 of 2009
Statement of Principles concerning Hypertension - Instrument No.23 of 2003 as amended by Instrument No.3 of 2004, Instrument No.11 of 2008
As to Mr Kaluza’s Anxiety Disorder
48. In order to determine whether Mr Kaluza’s conditions of anxiety disorder and alcohol abuse are war-caused, we first had to determine whether an hypothesis can be raised linking those conditions with his war service. In doing so, we considered all the material raised before us, including the Veteran’s claims regarding stressful events or stressors he experienced.
49. Mr Kaluza was on a flight from Butterworth to Vietnam, and back to Australia between 22 – 26 February 1969, and described how during the flight from Butterworth to Pearce on 24 February 1969, he was invited by fellow soldiers who were playing cards on a casket to participate as a fourth hand in the game. He said he thought at the time that they were transporting a coffin which he understood to contain the remains of an Aboriginal soldier who had been shot dead by the SAS. Mr Kaluza’s reaction to the incident was that he was upset because he visualised himself in the coffin with no head, or being someone who had been shot in the head. He said:
they were playing … dealing a fourth hand and they actually invited me to take that particular hand and I was really upset. … I did and tried to show some bravado or just not too concerned about it but that, that’s haunted me for the rest of my life until now. (Transcript p13)
50. Those raised facts in relation to the flight on 24 February 1969 referred to above point to an hypothesis connecting Mr Kaluza’s condition of anxiety disorder with his war service.
51. Mr Kaluza also raised ‘possible’ events in 1970. In his undated statement, (date stamped as received 1 November 2006 at the Tribunal), Mr Kaluza stated at paragraph 16 in relation to the 1969/70 and 1971 trips: I do not recall specific incidents that occurred on those trips. They were largely uneventful. In Mr Kaluza’s second statement, dated 17 July 2007, he expanded on what he recalled of his experiences in the 1968 trip, and on the card playing incident on the casket during the 1969 trip, and repeated that he did not recall specific incidents on the 1970 and 1971 trips. He repeated that they were largely uneventful, (paragraph 23 of Exhibit A3 dated 17 July 2007), adding at paragraph 25 that on the 1970 flight he remembered there were some minor casualties. Mr Kaluza gave evidence at the 2008 hearing as follows: The other one was just an uneventful trip in 1970 (Transcript, p34).
52. An hypothesis connecting Mr Kaluza’s condition of anxiety to his war service is pointed to by the situation of the card game which took place on the flight on 24 February 1969 (on operational service), and the description of possibly seeing minor casualties on a flight in 1970.
53. We moved then to consider the appropriate SoPs in relation to Anxiety Disorder, being Instruments No.1 of 2000, and No.101 of 2007, and to consider whether the hypotheses connecting Mr Kaluza’s anxiety disorder to his war service are reasonable hypotheses.
54. In Instrument No.1 of 2000 the possible factors are:
· factor 5.(a)(ii), the Veteran must have been experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
· factor 5(a)(iii) he must have had a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder;or
· factor 5(a)(v) experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder; or
· factor 5(a)(vii) having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of anxiety disorder; or
55. We dealt first with Instrument No.1 of 2000, factor 5.(a)(ii), and the claim regarding a severe psychosocial stressor occurring on the flight of 24 February 1969 during which Mr Kaluza was invited, and indeed agreed to join a card game being played on a casket containing a deceased soldier, and which caused him the distress he reported, (as reproduced in the paragraphs above). A further event to be considered in the context of the SoP was the possible carriage of minor casualties, or an uneventful trip in 1970.
56. A reasonable hypothesis will be raised connecting Mr Kaluza’s anxiety state to his war service if the occurrences raised by Mr Kaluza fit the template in the SoP, and are not contrary to proved or known scientific facts, or obviously fanciful, or absurd (Heerey J in Deledio).
57. A ‘severe psychosocial stressor’ is defined in Instrument No.1 of 2000 as an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.
58. The raised facts, that is Mr Kaluza being invited to play a card game on the casket on the flight of 24 February 1969, and possible carriage of minor casualties do not point to the possibility of Mr Kaluza experiencing a ‘severe psychosocial stressor’ during that flight, and fitting the template in Instrument No.1 of 2000.
59. Dr Dinnen did not refer to the playing of cards on the casket in particular as a severe psychosocial stressor, but relied on all the occurrences of stress which Mr Kaluza recounted, in particular the carriage of wounded soldiers on various flights.
60. We noted that Dr Roberts’ opined in his medical report dated 2007, that Mr Kaluza’s presentation was consistent with mild depression and anxiety symptoms, (not PTSD), and that the description of the card game could not be held to be a severe stressor in the terms of the SoPs.
61. Mr Kaluza’s experiences on the flight of 24 February 1969, as he raised them, demonstrated some distress, and in order to fit the template, needed to point to a threat of death or serious injury or to his physical integrity, and which with his knowledge and in his experience, could reasonably be so perceived. In that regard, we have taken into account Stoddart v Repatriation Commission (2003) 74 ALD 366).
It is consistent with these provisions that the SOPs should be read as meaning that a claimant experiences ‘a severe stressor’ if that person experiences or is confronted with an event or events which that person perceived as a threat of death or serious injury or to physical integrity, and which with that person’s knowledge and in that person’s experience, could reasonably be so perceived.
62. Stoddart is authority for the situation where Mr Kaluza’s distress regarding the identity of the person in the coffin did not need to be accurate, that is the events experienced can be a combination of subjective feelings and objective situations as in the case of the cocked gun (which may or may not be loaded), referred to in Stoddart. In order to fit the template, Mr Kaluza’s fourth hand in the game of cards on the casket had to point to a threat of death or serious injury or to his physical integrity by a combination, at least, of an objective threat and/or the expression of his feelings. Mr Kaluza’s situation does not in our view meet the factors for experiencing a severe psychosocial stressor in order to raise a reasonable hypothesis.
63. The other situations available in order to fit the template were being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems. Mr Kaluza did not raise those situations as hypotheses; they did not arise as hypotheses.
64. A further event to be considered in the context of whether the events fitted the template in SoP No.1 of 2000 and raised a reasonable hypothesis was the possible carriage of minor casualties on 20 November 1970, or in Mr Kaluza’s words an uneventful trip in 1970.
65. Dr Dinnen (Exhibit A4), raised witnessing casualties as a severe stressor, and what he considered the unsatisfactory legal definition of what constitutes a severe stressor when it comes to psychiatric diagnosis. He stated that in this case it is clear that the patient did in fact witness casualties and that his reaction did evoke intense emotion … It seems evident to me that his condition did develop after exposure to subjectively stressful experiences intertwined as is more commonly the case than not, with chronic abuse of alcohol.
66. We have noted the feelings raised by Mr Kaluza in regard to the carriage of minor casualties on the 1970 flight. The feelings as expressed do not fit the template in the SoP as situations envisaged for a severe psychosocial stressor. Accordingly the facts as raised by Mr Kaluza in relation to his experiences on 20 November 1970, do not fit the template in SoP No.1 of 2000, and hence there is no reasonable hypothesis linking Mr Kaluza’s anxiety state to his war service.
67. However we also looked to factor 5(a)(iii) which states that in order to meet the factors in the template, Mr Kaluza must have had a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder, and factor 5(a)(vii), having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of anxiety disorder. In Mr Colborne’s written submissions he raises facts which he submits point to the onset of anxiety disorder and 1969 and 1970:
· He relies on Mr Kaluza’s evidence that drinking became a problem in 1968/9.
· In 2003 Mr Kaluza referred to excessive drinking as one of the symptoms of his nervous tension.
· Dr Reinhardt stated in 2003 that Mr Kaluza dealt with ongoing anxiety with increasing amounts of alcohol. Dr Bell noted similarly in 2004.
· In 2006 Mr Kaluza referred to excessive drinking after Vietnam trips to dull his pain.
· Mr Kaluza was first treated for an anxiety condition in 1972.
68. Mr Colborne submitted therefore that those raised facts pointed to the drinking problem in 1968/9 being a response to the anxiety state which was subsequently diagnosed, and that a reasonable hypothesis was thus raised.
69. Mr Colborne submitted in the alternative that the onset of the anxiety state was in 1972, and was pointed to by continuing heavy drinking until 1975, which contributed to the onset or aggravated the anxiety state.
70. We have held that Mr Kaluza playing cards on the flight of 24 February 1969 and the possible events of 1970, raise hypotheses connecting his experiences to his war service. We have considered whether a reasonable hypothesis is raised in the application of factors 5(a)(iii), which states that in order to meet the factors in the template, Mr Kaluza must have had a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder, and factor 5(a)(vii), having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of anxiety disorder.
71. As to factor 5(a)(iii) which states that in order to meet the factors in the template Mr Kaluza must have had a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder, Mr Colborne raises facts which he submits point to the onset of anxiety disorder in 1969 and 1970, and the clinical onset of anxiety disorder in 1972. That would point to meeting the template in the SoP and raising a reasonable hypothesis.
72. As to factor 5(a)(vii), having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of anxiety disorder. The medical evidence points to that as a sequence if the onset of anxiety disorder (a clinically significant psychiatric disorder) arose in 1969 and 1970, and the clinical onset of anxiety disorder in 1972. We have held that Mr Kaluza suffered a psychiatric condition of anxiety by 1968, although its onset was 1972 when it was first treated. That would point to meeting the template in the SoP.
73. In the alternative we note that Instrument No.101 of 2007, and factors 6.(a)(ii) or 6.(a)(iii) 6.(c)(ii) and 6.(c)(v) may also be relevant. They follow:
6.(a)(ii) experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder; or
6.(a)(iii) experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder; or
…
6.(c)(ii) experiencing a category 1B stressor within the five years before the clinical
worsening of anxiety disorder;
74. Category 1A and 1B stressors are as follows:
a category 1A stressor means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
a category 1B stressor means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties;
75. Mr Kaluza playing cards on the flight of 24 February 1969 and the possible events of 1970 (viewing minor casualties), have pointed to raising hypotheses connecting his anxiety disorder to his war service. In considering whether a reasonable hypothesis is raised in the application of Instrument No.101 of 2007, we note that Mr Kaluza’s experiences do not fit the template in that they do not fit the Category 1A or 1B stressors in the Instrument, thus eliminating the possibility of raising reasonable hypotheses in relation to factors 6.(a)(ii) and (iii), and 6.(c)(ii).
76. There are thus no raised facts in Mr Kaluza experiencing a card game on a casket on the flight of 24 February 1969, or possibly viewing minor casualties, that point to the possibility of Mr Kaluza’s anxiety disorder fitting the template in Instrument No.101 of 2007. There is thus no reasonable hypothesis linking Mr Kaluza’s anxiety state to his war service in the application of Instrument No.101 of 2007.
77. We have moved then to consider section 120(1) of the Act, noting that the claim will succeed unless one or more facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material which is inconsistent with the hypothesis is proved beyond reasonable doubt, thus disproving beyond reasonable doubt, the hypothesis.
78. We accept the evidence of the Applicant who described that at various times such as 1968 he was in the company of wounded soldiers, which upset him greatly. However, we are satisfied that the 1968 flight was not on operational service. Accordingly we are satisfied beyond reasonable doubt that any stressors which Mr Kaluza claims occurred in 1968, and any ill effects cannot be war-caused within the legislation.
79. We are concerned with the flight from Butterworth to Pearce on 24 February 1969, and the flight on 20 November 1970, because they were on operational service. As already discussed above, on the flight of 24 February 1969, Mr Kaluza was invited by fellow soldiers who were playing cards on a casket to participate as a fourth hand in the game. He thought at the time they were transporting a coffin which he understood to contain the remains of an indigenous soldier who had been shot dead by his Platoon Commander. We accept that Mr Kaluza’s reaction to the incident was that he was upset because he visualised himself in the coffin with no head, or being someone who had been shot in the head. He said that the event had haunted him for the rest of his life, and stated as follows:
they were playing … dealing a fourth hand and they actually invited me to take that particular hand and I was really upset. … I did and tried to show some bravado or just not too concerned about it but that, that’s haunted me for the rest of my life until now. (Transcript p13)
80. Mr Kaluza has since found out, and it is not in dispute between the parties that his belief was erroneous, and that the soldier was another casualty. We accepted that this does not lessen the impact of the reaction Mr Kaluza described he had to the event, noting however that his life was not threatened in any way, and that he did not see the corpse inside the casket, or any other corpses or injured people, seriously or otherwise, on that trip. We are satisfied that playing cards on a casket on 24 February 1969, cannot qualify as a severe psychosocial stressor, neither fit the Category A or B stressors in the relevant SoPs.
81. However, we are satisfied that Mr Kaluza developed a psychiatric illness variously diagnosed first as PTSD, then anxiety disorder, the severity of which was not uniformly accepted. Dr Roberts in particular thought that Mr Kaluza suffered mild anxiety. We noted Mr Colborne’s submissions that the onset may have been earlier, but are satisfied that the onset was in 1972 when Mr Kaluza was first treated. That is three years after the 24 February 1969 event. We are satisfied beyond reasonable doubt that notwithstanding we found that Mr Kaluza suffered a psychiatric disorder with onset of anxiety disorder in 1972, the playing of cards on the casket on 24 February 1969 did not make the required nexus to war service.
82. We have also considered the reasonable hypothesis raised with regard to factor 5(a)(iii) of the Instrument No.1 of 2000. We are satisfied beyond reasonable doubt that although Mr Kaluza may have had a psychiatric condition within the two years immediately before the clinical onset of anxiety disorder, (its onset being 1972), the records before us do not indicate that the previous condition was diagnosed as a clinically significant psychiatric condition. Accordingly we are also satisfied beyond reasonable doubt that factor 5(a)(vii) is negatived.
83. We have also considered Mr Kaluza’s evidence regarding what occurred on 20 November 1970. He referred to possible carriage of minor casualties, or an uneventful trip. We are satisfied beyond reasonable doubt that even if there were minor casualties which according to Mr Kaluza’s evidence there may not have been, it was an uneventful trip, and could not have contributed to his anxiety disorder being war-caused.
84. Accordingly we are satisfied beyond reasonable doubt that Mr Kaluza’s anxiety disorder could not be war-caused.
As to alcohol abuse
85. We had to consider whether the material before us in regard to Mr Kaluza’s alcohol abuse could point to an hypothesis connecting his alcohol abuse to his war service.
86. Mr Kaluza told us that he started drinking on joining the Air Force, and that he had problems with drinking dating back to 1968 or 1969. He said that: The culture of the Air Force was such that you always drank with your mates and trying to keep it under control was pretty hard. (Transcript p17, 2008). The Veteran told us that prior to Vietnam he would drink and smoke socially, and sometimes drink too much, but after Vietnam, he was known as a drinker, and would become aggressive when drinking.
87. Mr Kaluza’s evidence in 2008 was that he married in June 1972, and was posted to the USA seven or eight weeks later. He said he was anxious, and drinking heavily. He suffered anxiety about his parents.
They diagnosed me with acute alcohol poisoning and anxiety and depression and they gave me some drugs for that. … it is a big stigma attached to your name that you are having mental problems…. Anyway I had treatment and numerous consultations with psychiatrists … I couldn’t sleep at night unless I was either zonked out by alcohol or some drugs although I hated Valium because that used to make me really feel like I was just a walking dead. (Transcript p14,2008)
88. Mr Colborne made the following submissions on Mr Kaluza’s behalf with regard to his alcohol consumption.
·9/10/72 Mild liver damage probably secondary to alcohol.
·A report refers to Mr Kaluza commencing heavy drinking in the United States.
·20/6/82 A report refers to Mr Kaluza undergoing rehabilitation following 2 DUIs.
·30/9/03 Mr Kaluza was referred to St John of God Hospital due to a serious drinking problem.
·23/10/03 Dr Reinhardt, Consultant Psychiatrist, diagnosed Alcohol Dependence.
·18/12/03 Dr Koller, Consultant Psychiatrist, diagnosed Alcohol Dependence.
·8/3/04 Dr Bell, National Medical Director, HSA, diagnosed Alcohol Dependence.
·22/3/07 Dr Dinnen, Consultant Psychiatrist, diagnosed Alcohol abuse.
·4/5/07 Dr Roberts thought Mr Kaluza’s employment history was inconsistent with the history he provided, and clinically he showed no manifestations of organic cerebral sequelae.
·Dr Roberts testified that cognitive impairment was not his area of expertise, and that he was aware of the neuropsychological assessment which had shown cognitive impairment as a result of chronic alcohol abuse (T16/98). Dr Roberts’ view about the absence of cognitive impairment is inconsistent with:
oDr Reinhardt’s history of deterioration in memory and concentration (T11/76);
oDr Koller’s history of poor concentration, especially in the work situation (T7/69);
oDr Bell’s history of impaired concentration and memory (T15/92); and
oDr Dinnen’s history of an inability to maintain a thought, and difficulty with thinking.
89. We noted from a consideration of all the material before us, that an hypothesis connecting Mr Kaluza’s condition of alcohol abuse to his war service is pointed to by the history of his drinking as summarised above.
90. We noted that there are several different SOPs relating to alcohol abuse, Instrument No. 76 of 1998, Instrument No.17 of 2008 and Instrument No.1 of 2009, and the most favourable we can apply, given the date of the decision, is Instrument No.76 of 1998. Factor 5.(a) which is similar to factor 6(a) in Instrument No.1 of 2009 (having a clinically significant psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse), appears to be the most relevant and follows. Factor 5(b) may also be relevant.
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse;
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
91. The raised facts we have to consider in relation to whether they fit the template in the SoP consisted of Mr Kaluza’s experiences playing cards on a casket on the flight described in the paragraphs above. Mr Colborne also raised Mr Kaluza witnessing casualty clearances, and the drinking he described which occurred after flights to Vietnam.
92. We have considered the definition of experiencing a severe stressor (factor 5.(b)), which means 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. We have taken into account what the Court said in Stoddart about subjective and objective elements in the application of stressors. The events raised in relation to the flight do not point to the possibility of fitting the template in the SoP, and a reasonable hypothesis cannot be raised in that regard.
93. As to factor 5.(a), the material before the Tribunal points to the dates of onset of anxiety disorder and alcohol abuse to be concurrent in 1972, following the operational service which Mr Kaluza undertook between 22 and 26 February 1969, in particular on 24 February 1969, and on 20 November 1970. We consider therefore that the hypothesis linking Mr Kaluza’s alcohol abuse with his anxiety disorder and war service is neither contrary to known scientific facts, neither too remote, nor otherwise fanciful. Thus a reasonable hypothesis is in place linking Mr Kaluza’s alcohol abuse with his war service. There are thus raised facts that point to the possibility of Mr Kaluza’s alcohol abuse fitting the template in factor 5(a) of Instrument No.76 of 1998, and pointing to a reasonable hypothesis linking Mr Kaluza’s alcohol abuse to his war service.
94. We have therefore moved to consider section 120(1) of the Act, noting that the claim will succeed unless one or more facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material which is inconsistent with the hypothesis is proved beyond reasonable doubt, thus disproving beyond reasonable doubt, the hypothesis.
95. In that regard we accepted the evidence of the Applicant that he had begun a pattern of increase in his alcohol consumption after joining the Air Force. The evidence before us satisfies us that Mr Kaluza’s drinking escalated seriously during his trip to the USA in 1972 due to personal problems and missing his family, and anxiety. He continued to abuse alcohol with short intervals of abstinence such as attendance at AA, or a St John of God Hospital program (2003). In considering Mr Kaluza’s alcohol abuse, we accepted that the onset was 1972, when treatment was commenced.
96. We were mindful of Dr Roberts’ opinions regarding Mr Kaluza’s alcohol abuse. He considered that Mr Kaluza’s employment history was inconsistent with the history he provided, and clinically he showed no manifestations of organic cerebral sequelae. Yet Dr Roberts testified that cognitive impairment was not his area of expertise, and that he was aware of the neuropsychological assessment which had shown cognitive impairment as a result of chronic alcohol abuse (T16/98). We agreed that Dr Roberts’ view about the absence of cognitive impairment was inconsistent with:
(a)Dr Reinhardt’s history of deterioration in memory and concentration (T11/76);
(b)Dr Koller’s history of poor concentration, especially in the work situation (T7/69);
(c)Dr Bell’s history of impaired concentration and memory (T15/92); and
(d)Dr Dinnen’s history of an inability to maintain a thought, and difficulty with thinking.
97. We were satisfied with the consistent reports regarding alcohol consumption Mr Kaluza gave to the other doctors he consulted, noting also that the Veteran’s marriage has suffered, and that Mr Kaluza and his wife are separated. We also noted that WG Cdr Isbister reported on 9 October 1972 that Mr Kaluza suffered some mild liver damage probably secondary to alcohol, signalling excessive alcohol consumption even then. However the medical evidence before the Tribunal, including that of Dr Dinnen, confirmed that the alcohol abuse arose out of the anxiety disorder, and therefore, notwithstanding Mr Kaluza’s alcohol abuse was contemporaneous with his anxiety condition, we could not be satisfied beyond reasonable doubt that Mr Kaluza’s alcohol abuse was war-caused, because we have found the anxiety condition to not be war-caused. We are therefore satisfied beyond reasonable doubt that Mr Kaluza’s alcohol abuse is not war-caused.
IS MR KALUZA’S HYPERTENSION WAR-CAUSED?
98. We turned then to decide whether, applying the principles set out in Deledio (supra), the material before us raised an hypothesis connecting Mr Kaluza’s condition of hypertension, which we have found he suffers, with his war service. It was the onset, conformity with the relevant SoP, and the decision whether it was war-caused pursuant to the legislation which was in issue. We have already found above that Mr Kaluza’s anxiety disorder and alcohol abuse were not war-caused.
99. The raised facts pointing to an hypothesis connecting Mr Kaluza’s hypertension to his war service were that he commenced heavy drinking in 1972 on his visit to the USA, that he was drinking 4 - 5 schooners and other alcoholic beverages daily, and that any attempts he made to reduce drinking were only for short periods such as when attending AA, or a program at St John of God Hospital. A history of blood pressure readings dating to 1972, and the content of the report of Dr Butler made in 2007, point to increases in blood pressure readings in the years leading to 1975, and point to November 1975 when anti-hypertensive medication commenced, as the clinical onset of hypertension. We noted that Dr Roberts had doubts about the level of alcohol consumption reported.
100. Nevertheless, a consideration of all the material before the Tribunal indicates the raised facts point to an hypothesis connecting Mr Kaluza’s alcohol abuse and hypertension with war service.
101. We moved then to consider the appropriate SoP’s, and noted that Instrument No.35 of 2003 as amended by Instrument No.3 of 2004, was the SoPs available at the time of the Respondent’s decision, and that a further SoP now applies, being Instrument No.11 of 2008.
102. Instrument No.35 of 2003 as amended by Instrument No.3 of 2004 is more favourable to the Applicant, so, given the date of the decision, we must apply it rather than Instrument No.11 of 2008 which requires that in order to meet factor 5(b), the Veteran had to consume at least 300 grams per week of alcohol for a continuous period of at least six months before the clinical onset of hypertension.
103. The relevant factors in Instrument No.35 of 2003 as amended by Instrument No.3 of 2004 are as 5(b) and (n):
5(b) consuming an average of at least 200 grams per week of
alcohol which cannot be decreased to less than an average of 200
grams per week, at the time of the clinical onset of hypertension;
104. There are thus raised facts that point to the possibility of Mr Kaluza’s alcohol consumption increasing substantially from 1972, and being in excess of 200 - 300 grams a day by 1975, being the date Dr Butler considered the appropriate date for the onset of hypertension. The raised facts before us fit the template in the relevant SoP, and point to a reasonable hypothesis linking Mr Kaluza’s hypertension to his war service.
105. We have also considered factor (n) which follows:
(n) suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension; or
106. We also considered whether the raised facts point to the possibility of Mr Kaluza suffering a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension. Doctors back in 1965 documented Mr Kaluza suffering mild anxiety, he was treated for anxiety disorder or PTSD in 1972 and later in 1975, and also from 2003. Dr Dinnen considered Mr Kaluza suffered anxiety disorder from 1972. Dr Roberts diagnosed mild anxiety. The raised facts meet Factor 5(n) in SoP No.35 of 2003 as amended by Instrument No.3 of 2004, and fit the template.
107. Consideration of all the material before the Tribunal points to the raising of a reasonable hypothesis linking Mr Kaluza’s hypertension to his war service. The Tribunal considers that the hypothesis linking Mr Kaluza’s hypertension with his alcohol abuse is neither contrary to known scientific facts, neither too remote, nor otherwise fanciful.
108. We have therefore moved to consider section 120(1) of the Act, noting that the claim will succeed unless one or more facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material which is inconsistent with the hypothesis is proved beyond reasonable doubt, thus disproving beyond reasonable doubt, the hypothesis.
109. In that regard we accepted the evidence of the Applicant that he had begun a pattern of increase in his alcohol consumption after joining the Air Force. The evidence before us satisfies us that Mr Kaluza’s drinking escalated seriously during his trip to the USA in 1972, due to personal problems, and missing his family, and anxiety, and that he continued to abuse alcohol with short intervals of abstinence such as attendance at AA, or a St John of God Hospital program. In 1980 and 1981, he continued to drink, and had DUI driving convictions.
110. In considering Mr Kaluza’s hypertension, we noted that whilst the Veteran may have commenced suffering hypertension before, it was common ground that the onset was in November 1975 (Dr Butler) when treatment was commenced.
111. However we have found that neither Mr Kaluza’s anxiety disorder nor his alcohol abuse are war-caused. Therefore as his hypertension arises out of a non war-caused condition of alcohol abuse, we can be satisfied beyond reasonable doubt that Mr Kaluza’s hypertension was not war-caused.
112. The material which we have reviewed includes the finding we have made above that Mr Kaluza’s diagnosed conditions of anxiety disorder and alcohol abuse are not war-caused, and that Mr Kaluza suffers hypertension which arises out of his non war-caused conditions. We are therefore satisfied beyond reasonable doubt that the Applicant’s condition of hypertension is not war-caused.
DECISION
113. The Tribunal varies the decision under review to find that Mr Kaluza suffers anxiety disorder, alcohol abuse and hypertension. The Tribunal finds that none of those conditions are war-caused.
I certify that the 113 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr M E C Thorpe, Member
Signed: ..............[sgd]..................................................................
AssociateDate of Hearing 3 May 2010
Date of Decision 2 July 2010
Counsel for the Applicant Mr C Colborne
Solicitor for the Applicant H Ebrahini,Vardanega Roberts Solicitors
Counsel for the Respondent Ms K Eastman
Solicitor for the Respondent L Buchanan, Australian Government Solicitor
23
0