Kaluza v Repatriation Commission
[2008] AATA 392
•14 May 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 392
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/840
VETERANS' APPEALS DIVISION ) Re STANISLAW KALUZA Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member
Dr M E C Thorpe, MemberDate14 May 2008
PlaceSydney
Decision The Tribunal varies the decision under review and finds that Mr Stanislaw Kaluza suffers from anxiety disorder, alcohol abuse and hypertension, but not PTSD or alcohol dependence. The Tribunal finds that none of the conditions claimed or diagnosed are war-caused. ...............[sgd]...............................
Ms G Ettinger Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – 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 9, 5D, 120, 120A, 120(1), 120(3), 120(4)
Statement of Principles concerning PostTraumatic Stress Disorder - Instrument No.3 of 1999, as amended by Instrument No.54 of 1999, Instrument No.5 of 2008
Statement of Principles concerning Anxiety Disorder - Instrument No. 1 of 2000, No.101 of 2007
Statement of Principles concerning Alcohol Dependence or Alcohol Abuse - Instrument No. 76 of 1998, Instrument No.17 of 2008
Statement of Principles concerning Hypertension - Instrument No.23 of 2003 as amended by Instrument No.3 of 2004, Instrument No.11 of 2008
Repatriation Commission v Cooke (1998) 160 ALR 17
Budworth v Repatriation Commission [2001] 63 ALD 422
Repatriation Commission v Keeley (2000) 60 ALD 401
Gorton v Repatriation Commission (2001) 63 ALD 723
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Deledio (1998) 83 FCR 82
Deledio v Repatriation Commission [1997] 47 ALD 261
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Keeley (2000) 60 ALD 401
REASONS FOR DECISION
14 May 2008 Ms G Ettinger, Senior Member
Dr M E C Thorpe, Member1. Mr Kaluza is a 61 year old veteran who served in the Royal Australian Air Force (Air Force) from 29 August 1963 to 31 October 1983. He was an aircraft technician, and participated in several flights to Vietnam. Mr Kaluza told us that he undertook many overseas flights all over South East Asia and New Guinea.
2. Mr Kaluza was posted to 37 Squadron at Richmond from 5 September 1966 to 3 September 1973. The Respondent held that Mr Kaluza served on operational service for two days, one in 1969 and another in 1970, while the Veteran claimed he had served four to six days on operational service between 1968 and 1971. Mr Kaluza joined the Reserves immediately after leaving the Air Force in 1983 and remained until 2004, at times working fulltime for the Air Force. The Applicant’s eligible service was from 7 December 1972 to 31 October 1983.
3. Because Mr Kaluza served on operational service, for him to succeed, the reasonable hypothesis test pursuant to section 120 of the Veterans Entitlements Act 1986 (the Act), and the application of the relevant Statements of Principles (SoPs), are relevant once diagnosis of his various conditions is established on the balance of probabilities, (section 120(4) of the Act). The eligible defence service is considered pursuant to the balance of probabilities.
4. The events which Mr Kaluza claimed as stressors in the Hercules in which he was flying, were the invitation to join three of his colleagues in a game of cards being played on the casket of a deceased soldier being repatriated, and on another flight, being confronted with approximately 20 wounded soldiers who were in various stages of injury, and being evacuated. Mr Kaluza also told us about a third stressful event, the death of a close friend, Noel, in Vietnam, but was not claiming that as causally related to his war-caused conditions.
5. Mr Kaluza made a claim to the Repatriation Commission on 9 October 2003 for pension for incapacity from war-caused PTSD, alcohol dependence and hypertensive cardiovascular disease. The delegate refused the claim, and Mr Kaluza appealed to the Veterans’ Review Board which, on 27 April 2006, affirmed the decision of the delegate, although it varied the diagnosis of hypertensive cardiovascular disease to hypertension, accepting that Mr Kaluza suffers PTSD and hypertension, the latter with onset in 1972. Mr Kaluza appealed the decision of the VRB to this Tribunal on 10 July 2006.
6. We found that Mr Kaluza does not suffer PTSD or alcohol dependence, but that he suffers anxiety disorder, alcohol abuse, and hypertension.
7. We varied the decision under review. However we found that none of the conditions claimed or diagnosed was war-caused. Our reasons follow.
ISSUES BEFORE THE TRIBUNAL
8. The issues which the Tribunal had to decide were:
· The dates of Mr Kaluza’s operational service;
· Whether Mr Kaluza suffers the conditions he claims as listed below;
· PTSD
· Anxiety Disorder
· Alcohol abuse or alcohol dependence
· Hypertension
· If he suffers any of these conditions, whether any are war-caused pursuant to section 9(1) of the Act, taking into account both the Veteran’s eligible and operational service.
9. We noted that the VRB accepted that Mr Kaluza suffers PTSD, alcohol dependence and hypertension, but did not accept that the conditions were war-caused. We had, before considering whether any condition Mr Kaluza suffers is war-caused, to first determine diagnosis of his claimed conditions by reference to the tests in DSM-IV and pursuant to section 120(4) of the Act (Repatriation Commission v Cooke (1998) 160 ALR 17).
10. We noted that the agreed date of effect for any condition found to be war-caused was 9 July 2003.
LEGISLATION
11. 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 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;
(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
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.
…”
12. The standard of proof for diagnosing a condition prior to considering whether it is war-caused, is to the reasonable satisfaction of the Tribunal pursuant to section 120(4) of the Act which follows as relevant. (Repatriation Commission v Cooke (supra); Budworth v Repatriation Commission [2001] 63 ALD 422).
“120Standard of proof
…
(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 120B.
…”
13. 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
(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)an injury suffered by a person is a war‑caused injury or a defence‑caused injury;
(b)a disease contracted by a person is a war‑caused disease or a defence‑caused disease;
(c) the death of a person is war‑caused or defence‑caused; or
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
…”
14. 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
...”
STATEMENTS OF PRINCIPLES
15. In cases of operational service, the determination of whether a condition is war-caused is made pursuant to tests in sections 120 and 120A of the Act, and where applicable, the application of the Repatriation Medical Authorities, SoPs. The test for application of the SoPs in relation to eligible service is on the balance of probabilities. Principles for selection of the SoPs have been determined in the cases of Repatriation Commission v Keeley (2000) 60 ALD 401 and Gorton v Repatriation Commission (2001) 63 ALD 723. Accordingly, the relevant SoPs in this case were:
Statement of Principles concerning PostTraumatic Stress Disorder - Instrument No.3 of 1999, as amended by Instrument No.54 of 1999, Instrument No.5 of 2008
Statement of Principles concerning Anxiety Disorder Instrument No.1 of 2000, Instrument No.101 of 2007
Statement of Principles concerning Alcohol Dependence or Alcohol Abuse - Instrument No. 76 of 1998, Instrument No.17 of 2008
Statement of Principles concerning Hypertension - Instrument No.23 of 2003 as amended by Instrument No.3 of 2004, Instrument No.11 of 2008
16. We were mindful that new SoPs relevant to Mr Kaluza’s appeal had been announced since the hearing, and mindful of Gorton v Repatriation Commission (supra), we wrote to the parties in order that they be afforded the opportunity of making further submissions, taking these into account. Mr Colborne made an additional submission in writing which we have taken into account. We noted that Mr O’Reilly agreed with Mr Colborne that the additional SoP was Instrument No.17 of 2008 concerning alcohol abuse and alcohol dependence, and indicated the Respondent would rely on the material it had already placed before the Tribunal.
WHAT ARE THE DATES OF MR KALUZA’S OPERATIONAL SERVICE
17. There was disagreement regarding the dates of Mr Kaluza’s operational service, and accordingly we were required to determine those before deciding what conditions he suffers, and whether any of those are war-caused. 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.
18. We were mindful that with the introduction of an Instrument of the Minister for Defence, Industry, Science and Personnel made pursuant to the Act, and dated 23 December 1997, (Exhibit A1), certain of Mr Kaluza’s service with No.37 Squadron, and his flights on Hercules aircraft to Vietnam were classified as operational service. We noted further that, for the guidance of decision makers, the Instrument specified 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.”
19. Mr Kaluza claims 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.
20. In his Statutory Declaration and Statements (Exhibit A3), Mr Kaluza deposed that in addition to the two accepted dates, there was also one flight in early 1968, one in 1969/70, and another in 1971. He indicated that the flight which took place in the first half of 1968 was to take stores, equipment and mail to Vietnam, and to repatriate wounded personnel. He indicated in his statement at Exhibit A3, that the flight was under the command of Wing Commander McKimm, and that there was an incident on board involving loss of cabin pressure. He said that after refuelling, the aircraft continued on to Butterworth, and on the next day, he flew with it to Vung Tau to repatriate injured soldiers. He said that it was a Medivac flight. He also told the Tribunal that Personnel Occurrence Reports were “quite inaccurate and do not always contain a substantive list of all records of flights.”
21. Air Commodore Brennan of Writeway Research Service Pty Ltd produced reports which are at T13 and Exhibit R2. He wrote in relation to the January 1968 flight that there was no entry in Personnel Occurrence Reports for 1968 between Butterworth and Vietnam which included Mr Kaluza (Exhibit R2). He stated that he also conducted a review of 37 Squadron Unit History Sheets for 1968, and that this did not show up any record of a diversion of an aircraft into Kuala Lumpur due to a pressurisation problem or for any other reason. Air Commodore Brennan indicated that there was an entry in Unit History Sheets for January 1968 noting that a mission with a medical evacuation designator “MV” was delayed for 24 hours due to unserviceability, but that the records did not mention Mr Kaluza.
22. Air Commodore Brennan noted further that the Unit History Sheets for February 1968 showed a “VT” designated mission which carried out three extra sorties to Vietnam. It was however not designated “MV”, and did not include Mr Kaluza’s name among the 37 Squadron personnel on that mission. He confirmed the Respondent’s assertions that Mr Kaluza’s operational service is documented as having taken place on 22 February 1969 and 20 November 1970.
23. Mr Kaluza indicated that the 1969/70 and 1971 flights, were similarly to carry equipment into Vietnam, and carry personnel back. He did not recall specific incidents in relation to those flights and stated that they were “largely uneventful”.
24. Mr Colborne submitted that Mr Kaluza’s consistent evidence that he undertook five or six flights on operational service was to be preferred to any other version, particularly as the Veteran had given it at a time when operational service was not in issue (evidence to the VRB on 29 July 1986, T5/43). Mr Colborne made lengthy written submissions on behalf of Mr Kaluza which are summarised below:
a) On 29 July 1986, Mr Kaluza told the Veterans’ Review Board that he had visited South Vietnam 6 times for about 4 hours between 1968 and 1971, but had no records of the dates of the flights.
b) Dr Koller reported in 2003 that Mr Kaluza did 4 or 5 trips to Vietnam in 1969/70, mainly with ground support, and had been involved in transporting sick and injured soldiers to Butterworth and in returning a body to Australia, where soldiers played cards on the coffin. Dr Reinhardt set out a similar history in 2003. Dr Dinnen reported in 2007 that Mr Kaluza told him he had made 5 or 6 trips to Vietnam.
c) In 2003 the Department of Defence advised incorrect dates for Mr Kaluza’s travel in correspondence, which was commented on by Air Commodore Brennan. Air Commodore Brennan had researched Personnel Occurrence Reports, Squadron Unit History sheets and a Flight Authorisation Book which revealed certain inconsistencies in record keeping. Air Commodore Brennan had explained that the Personal Occurrence Reports probably deliberately omitted any reference to a Vietnam component for certain missions because of some sensitivity by South East Asian nations about the RAAF using bases there to support forces in Vietnam. He had used the flight designator as an indicator of the likely destination of a flight, but that too was not a reliable record Mr Colborne submitted.
d) Mr Kaluza had not done a full search because he only needed one deployment to qualify for a service medal. In his undated statement, he explained how he obtained the records of these flights in 1986 from records then held at 37 Squadron, and did not bother to search further, and later found that the records had been moved to Canberra or Melbourne.
e) Air Commodore Brennan considered that it was most probable that the 1969 flight repatriated the remains of two Australian soldiers to Australia. Mr Kaluza had indicated that the incident with the SAS soldier occurred on PG899 in February 1969 on the way from Butterworth to Perth, and the card game is likely to have been on that flight.
f) Mr Kaluza declared in 2006 that he was involved in three additional flights to Vung Tau to take stores, equipment, mail and personnel. He recalled that the return leg of a flight in 1968 evacuated casualties to Butterworths, where Mr Kaluza remained for a number of days while the flight continued to evacuate casualties.
g) In his undated statement, Mr Kaluza stated that he thought his first flight to Vietnam was in the first half of 1968 on a flight captained by Wing Commander McKimm that lost pressure and had to land at Kuala Lumpur. It then proceeded to Vung Tau and transported casualties to Butterworth. He stated that they all appeared badly hurt and that the bandages did not control the bleeding well. The journey took two hours. Mr Kaluza was badly affected and was told he did not need to continue flying on further evacuation flights from Vung Tau to Butterworth. He said he felt really bad and helpless, because there was nothing he could do but watch them. He stated that he stayed in Butterworth for two or three days before making the return journey. He stated that the other trips in 1969/70 and 1971 were largely uneventful.
h) Air Commodore Brennan’s report of 30 January 2007 refers to a review of Squadron Personnel Occurrence Reports for the period from 1966 to 1973 and of applicable Unit History Sheets. He found two flights that had similarities to those described by Mr Kaluza, but Mr Kaluza was not shown as being on them –
(a)a medical evacuation flight in January 1968 was delayed due to unserviceability, although the nature of the unserviceability is not mentioned in the documents examined;
(b)a flight in February 1968 carried out three extra sorties but did not have a medical evacuation designator;
i) Mr Colborne submitted that the Tribunal should accept the evidence of Mr Kaluza about his flights to Vietnam in 1968 and 1969. He submitted that Mr Kaluza has consistently claimed to have made five or six flights to Vietnam, and significantly first did so when it was not an issue. He has provided considerable detail of the 1968 flight, including the name of the flight captain and of the problem that arose with pressurisation. He could not have known that the RAAF’s records would not permit that flight to be identified from those details.
j) The fact that Air Commodore Brennan has not been able to confirm those details cannot be decisive. The original advice from Defence seems now to have been wrong, and the flight designator for the flight on 20 February 1969 was misleading, possibly due to changes made to the flight mission after the commencement of the flight. Furthermore, Air Commodore Brennan was unable to identify any documentation that showed the actual itinerary of that flight, or the flight in 1970, or as to the nature of the unserviceability of the flight in January 1968. Mr Colborne submitted that clearly the records kept by Defence contain significant deficiencies, and given the lack of accuracy in official records, the Tribunal should be satisfied, on balance, that Mr Kaluza made the flight in 1968.
25. Mr O’Reilly submitted on behalf of the Respondent that Mr Kaluza’s operational service pursuant to the Veterans Entitlement Act 1986 was for two days only, that is, 22 February 1969 and 20 November 1970. Mr O’Reilly submitted, referring to Mr Kaluza’s access to records in Canberra and Melbourne, the Departmental records, and Air Commodore Brennan’s research, that all the necessary investigations with regard to the correct dates for Mr Kaluza’s operational service had been carried out.
26. Mr O’Reilly noted that Mr Kaluza’s flight of 22 February 1969 flight had travelled from Butterworth to Vung Tao, and back to Butterworth, and that Mr Kaluza had remained in Butterworth on 23 February 1969. Mr O’Reilly submitted that it was on the flight which took place on 24 February 1969 from Butterworth to Pearce, that the soldiers were playing cards on the casket. Mr Kaluza was examined regarding the dates, and agreed it was on that sector.
27. Mr O’Reilly submitted that the Respondent rejected the recently raised submission of the Applicant regarding the 22 February 1969 flight, namely that the layover in Butterworth on 23 February 1969 was simply a break in the journey from Vung Tau, (continued on 24 February 1969), and accordingly qualified for operational service. He submitted that pursuant to the Instrument, that flight could not be classified as operational service.
28. Mr O’Reilly also submitted that when the Instrument was made, it was accepted that the documentary records would be used to identify operational service. Accordingly, his submission was that the Respondent could not accept that Mr Kaluza had operational service in 1968, and adhered to the view that the two above mentioned dates, (22 February 1969 and 20 November 1970), were the only dates relevant to Mr Kaluza’s operational service.
29. In coming to a decision regarding the dates of Mr Kaluza’s operational service, we were mindful of the submissions of both parties regarding Mr Kaluza’s operational service, and accepted the Respondent’s submission that Mr Kaluza had the opportunity of making full searches. We cannot be certain to what extent he availed himself of those opportunities, although it is clear he made certain searches.
30. We were satisfied however, that Air Commodore Brennan carried out extensive research, and noted that there were inconsistencies in the keeping of records. We noted that there were various documents used at the time, such as the Personnel Occurrence Reports, Squadron Unit History sheets and a Flight Authorisation Book. We accepted that Air Commodore Brennan was charged with researching the relevant dates for Mr Kaluza’s operational service, and rely on his first and his supplementary report, and the documented flights which qualify Mr Kaluza for operational service. (T13, T20 & Exhibit R2) We are satisfied that Air Commodore Brennan made a complete search of the records.
31. We are mindful that with the introduction of an Instrument of the Minister for Defence, Industry, Science and Personnel made pursuant to the Act, and dated 23 December 1997, (Exhibit A1), Mr Kaluza’s service with No.37 Squadron, and his flights on Hercules aircraft to Vietnam were classified as operational service.
32. We noted that it was not in dispute that 22 February 1969 and 20 November 1970 were documented as dates on which Mr Kaluza qualified for operational service, and we were satisfied with regard to those dates. We were mindful Mr Kaluza recalled he had been on approximately three other flights, one in early 1968, under the command of Wing Commander McKimm where there had been a loss of cabin pressure, another in 1969/70, and another in 1971.
33. We were also mindful that Air Commodore Brennan’s research indicated that there was no entry in Personnel Occurrence Reports which included Mr Kaluza flying between Butterworth and Vietnam in 1968 (Exhibit R2). He stated that he also conducted a review of 37 Squadron Unit History Sheets for 1968, and that this did not show up any record of a diversion of an aircraft into Kuala Lumpur due to a pressurisation problem or for any other reason. He indicated that there was an entry in Unit History Sheets for January 1968, noting that a mission with a medical evacuation designator “MV” was delayed for 24 hours due to unserviceability. We noted that the records did not mention Mr Kaluza.
34. We were mindful of Mr Kaluza’s evidence that he had seen injured soldiers in January or February 1968 although he could not specify a date. His evidence was that there were “badly hurt” soldiers on board, and that “those with the worst injuries appeared to be sedated and most were on stretchers with bandages that did not control the bleeding well … I was badly affected by seeing the casualties..” We accepted from the official records which Air Commodore Brennan had searched in detail that Mr Kaluza was not on those flights. Accordingly we were satisfied that he could not have given operational service in January or February 1968
35. Mr Kaluza described what he termed as his next flight to Vietnam in 1969, which he said was a “Phan Rang special”. He told us that they brought back some 30 – 40 SAS soldiers, and some caskets. (Transcript p12, 17 October 2007). 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, being the pressurisation problem in the aircraft and the carriage of wounded soldiers. In his statement he also commented 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, repeating that they were largely uneventful, (paragraph 23 of Exhibit A3 dated 17 July 2007). He added however that on the 1970 flight he remembered there were some minor casualties on the flight (paragraph 25).
36. Mr Kaluza’s evidence was that he did not recall specific events on the day of 22 February 1969, on which he was on a flight from Butterworth to Vung Tao and back. He said that the day was largely uneventful. There was no dispute that he spent the following day, 23 February 1969, at Butterworth. Mr Kaluza reported that he felt “helpless” and upset during the flight on the following day, 24 February 1969, when flying between Butterworth and Perth because he had been asked to join a card game which was being played on a casket carrying a dead soldier whom he believed to have been killed by SAS personnel.
37. In coming to a decision whether the flight on 24 February 1969 was on operational service for Mr Kaluza, we considered the Instrument which specified when each period commenced and ended. We noted by reference to the Instrument, as stated below, that after Mr Kaluza left Vietnam on 22 February 1969, he arrived in Butterworth. We did not have any evidence to satisfy us that he performed duty there associated with a continuing journey to Australia. He then travelled from Butterworth to Pearce on 24 February 1969, but he had arrived at Butterworth on 22 February 1969, and hence his journey had ended on that day as far as operational service went. In coming to that decision we relied on the words of the Instrument which are reproduced below, and found that Mr Kaluza had journeyed to a place (Butterworth), outside Australia, on 22 February 1969. We had no evidence regarding whether Mr Kaluza was at Butterworth on 23 February 1969 to perform duty not associated with a continuing journey to Australia, or whether it was simply a rest day. However either way we are satisfied pursuant to the Instrument that the period of operational service for Mr Kaluza, on that occasion, ended on 22 February 1969 when he arrived at Butterworth.
“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…”
38. We were satisfied that the flight on 24 February 1969 from Butterworth to Pearce which Mr Kaluza made was not on operational service.
39. As to the 1970 trip; Mr Kaluza stated at page 34 of the Transcript that: “The other one was just an uneventful trip in 1970.” We noted that in contradiction of that, Mr Kaluza had stated at paragraph 25 of his statement dated 17 July 2007 (Exhibit A3), that he remembered there were some minor casualties on the flight. We are mindful that when applying the SoPs further on in these Reasons for Decision, to decide whether any of Mr Kaluza’s conditions are war-caused, the stressor require more than the witnessing of minor casualties in order to meet the relevant factors in the templates.
40. We are mindful that the records of the time may have some inaccuracies. Unfortunately we were not able to rely on Mr Kaluza’s recollections as to further additional flights which could be classified as operational service, because understandably given the effluxion of time, he was not able to remember specific dates. We were mindful that Mr Kaluza participated in many flights, and could not be expected to recall them all. We have noted that he had a recollection of a flight in 1968, and described the aircraft having pressurisation problems. However we do not have a date on which to consider operational service, and we were satisfied from the thorough Brennan search of the records that Mr Kaluza was not recorded as having been on an operational service flight in early 1968.
41. In considering whether any conditions Mr Kaluza suffers are war-caused, we are concerned only with flights which qualified him for operational service. We are satisfied and prefer the submissions of the Respondent, and accordingly find that Mr Kaluza had operational service only on 22 February 1969 and 20 November 1970.
42. We moved then to consider the various claims, and the diagnoses of the conditions claimed.
DOES MR KALUZA SUFFER PTSD OR GENERALISED ANXIETY STATE
43. Mr Colborne submitted that notwithstanding Mr Kaluza had been diagnosed with PTSD, his main claim for war-caused psychiatric illness was, in the alternative, for anxiety state. We were mindful that the VRB, whilst not accepting that Mr Kaluza’s PTSD was war-caused, had accepted the diagnosis as made by Drs Koller and Reinhardt. Before we can consider whether any injury or disease is war-caused, we must first be satisfied that the Veteran suffers the disease as claimed, pursuant to DSM-IV. As stated above, the standard of proof for the diagnosis of a condition is on the balance of probabilities, to the reasonable satisfaction of the Tribunal (section 120(4) of the Act, Cooke (supra)).
44. We noted during the course of the hearing, that Mr Kaluza was recorded on 1 April 1965, in his defence file, as suffering a chronic mild anxiety state (Exhibit R3). We also noted that he had problems with anxiety and alcohol consumption between 1972 and 1975, and that there was no further record of any psychiatric treatment between 1975 and 2003. Dr Dinnen opined that the clinical onset of anxiety disorder was 1972, and that notwithstanding there was no record of treatment, Mr Kaluza’s condition would have fluctuated between 1975 and 2003.
45. In order to decide whether Mr Kaluza suffers PTSD, we have considered his evidence, the medical evidence, and the criteria from DSM-IV as follows:
“ ‘post-traumatic stress disorder’ means a psychiatric condition meeting the following description (derived from DSM-IV):
(a) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person's response involved intense fear, helplessness, or horror; and
(b) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(c) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(d) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(e) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(f) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning."
46. We were mindful that the tests in paragraph (a) of the DSM-IV definition require that the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, and that the person’s response to that event involved intense fear, helplessness or horror.
47. In order to establish whether Mr Kaluza suffered PTSD pursuant to the DSM-IV definition, we needed first to establish to our satisfaction whether the events during operational service were of such significance as to be able to be classified as traumatic events. We were mindful that the events claimed by Mr Kaluza to be the traumatic events were as follows.
48. Mr Kaluza described being in the company of sick and injured soldiers on flights from Vietnam to Butterworth in early 1968 where he claims he felt “really bad” and “I guess helpless” at the sight of their injuries and suffering. He gave evidence with regard to the flight in 1968 that:
“…probably 20 soldiers, 20, maybe a bit more soldiers that were quite injured …. I do remember seeing those poor soldiers, they had bandages all over them. Some had intravenous tubes. I mean, I felt really bad and I guess helpless, I couldn’t help them, I was just fit and supposedly looking at these poor unfortunate blokes”. (Transcript p11)
49. Mr Kaluza also described being invited by fellow soldiers who were playing cards on a casket during a flight on 24 February 1969, to participate in the game when they were transporting a coffin which he then understood to contain the remains of an Aboriginal soldier who had been shot dead by the SAS.
50. We noted Mr Kaluza’s evidence about the card game during which he was asked to play a fourth hand on the casket carrying a soldier, and how he reacted to the incident. Mr Kaluza accepted that this occurred on the sector Butterworth to Pearce on 24 February 1969, after he had returned to Butterworth from Vung Tau on 22 February 1969, and spent 23 February 1969 there. We noted Mr Kaluza’s reaction to the incident, being 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)
51. Mr Kaluza admitted that at the time, he had thought mistakenly, that the occupant of the coffin was an Indigenous soldier who had been shot dead by his Platoon Commander, which he now knew not to be correct. We noted that one of the Applicant’s best friends, Noel, was killed in Vietnam. We were mindful that Mr Kaluza was not claiming this event as a stressor in relation to war-caused injury or disease.
52. The medical evidence with regard to Mr Kaluza’s psychiatric state was added to by service records produced by the Commission. They record that prior to his Vietnam service, Mr Kaluza was admitted to sickbay on 23 March 1965, with symptoms which were considered to have been as a result of viral pharyngitis, after which he was absent without leave for a week or so. A psychiatrist then saw him and recorded that the absence was explained by a mild anxiety state due to problems with his stepfather. Medical notes signed by Wing Commander Greenberger on 1 April 1965 indicated that Mr Kaluza’s absence without permission was due to “a medical matter rather than a disciplinary issue.”
53. We noted that in 1972 Mr Kaluza travelled to the USA, where he suffered anxiety due to home sickness and thoughts about his friend Noel who had been killed in Vietnam. He reported he could not sleep, and drank excessive amounts of alcohol. Dr Wilton reported on 10 October 1972 that Mr Kaluza had a history of “nervous tension” while travelling in the USA some six weeks earlier, and diagnosed acute anxiety reaction with depressive overtones, probably related to the separation from the Applicant’s parents. Dr Wilton reported again on 17 October and 12 December 1972. Further reports with regard to signs and symptoms of anxiety were recorded from early 1973 to March and April 1973.
54. Mr Colborne summarised the clinical history of Mr Kaluza’s anxiety as follows:
“23/3/65 a Psychiatrist diagnosed a mild anxiety state
10/10/72Dr Wilton, Psychiatrist, diagnosed acute anxiety reaction with depressive overtones
1975 there were references to an anxiety state
23/10/03 Dr Reinhardt, Consultant Psychiatrist, diagnosed Chronic PTSD.
18/12/03Dr Koller, Consultant Psychiatrist, diagnosed Chronic PTSD.
8/3/04Dr Bell, National Medical Director, HSA, diagnosed Chronic PTSD.
14/6/05Dr Wong, Occupational Physician noted that the diagnosis of PTSD was not universally accepted but that he would also fit the diagnosis of GAD but either way he was unfit for employment because of his psychiatric symptoms.
22/3/07 Dr Dinnen, Consultant Psychiatrist, did not cavil with a diagnosis of
PTSD but preferred a diagnosis of GAD.4/5/07Dr Roberts found the presentation consistent with mild depression
and anxiety.
… the Tribunal can be satisfied that the appropriate diagnosis since 2003 has been PTSD, regardless of the earlier psychiatric history.
Alternatively, there is no dispute that Mr Kaluza has an anxiety disorder and the only alternative diagnosis proposed is that of GAD or Anxiety Disorder Not Otherwise Specified. If the Tribunal is not satisfied that Mr Kaluza now has PTSD then it should find that he has one of these anxiety disorders.”
55. We noted the available medical evidence as to PTSD.
56. Dr Reinhardt, a consultant psychiatrist indicated she had been treating Mr Kaluza with Dr Koller since 21 October 2003, and opined in reports of 15 June 2004 (T15), that the Veteran suffered chronic war-caused PTSD and alcohol dependence, (the latter in remission at the time of her report ). Mr Kaluza was also admitted to St John of God Hospital under Dr Reinhardt between 29 October 2003 and 14 November 2003, the report at T21/115 indicating that he suffered PTSD, alcohol dependence and other conditions.
57. Dr Bell, National Medical Director of HSA, (not a psychiatrist), opined on 8 March 2004 after an assessment of the Veteran, that the Veteran suffered chronic PTSD and alcohol dependence.
58. Dr Koller who is a psychiatrist, produced a report date 17 January 2004 which is at T9. He considered the appropriate diagnosis to be PTSD.
59. We also had before us the report of Dr Dinnen, a psychiatrist, dated 22 March 2007 (Exhibit A4). Dr Dinnen gave oral evidence before the Tribunal. Dr Dinnen reported Mr Kaluza told him he had made five or six trips to Vietnam in Hercules aircraft. Dr Dinnen reported having been told by Mr Kaluza that the flights were carrying wounded soldiers, and Mr Kaluza’s reaction to that, which was to feel helpless and guilty. Dr Dinnen recorded that Mr Kaluza told him it was also because the events caused him to reflect on the death of his friend. Dr Dinnen commented on Mr Kaluza’s report to him about the carrying of caskets, and the card game on the dead man’s casket. Dr Dinnen also reported Mr Kaluza telling him about the medical attention he required when he was in the USA, and his treatment by a psychiatrist at Richmond.
60. Dr Dinnen recorded that Mr Kaluza had initially been referred for psychiatric evaluation in October 1972. Dr Dinnen opined:
“The most obvious aspect of this case which appears to have been overlooked in the administrative procedures evaluating the claim in the presence, clearly recorded, of stress related anxiety disorder occurring during service, consequent to operational service.”
61. Dr Dinnen opined that: “the most appropriate diagnosis was of generalised anxiety disorder associated with alcohol abuse although there are obvious features of post traumatic stress disorder and I do not cavill at the diagnosis proposed by Dr Koller and Dr Reinhardt …”.
62. In his oral evidence Dr Dinnen opined that in the 1960s and 1970s Mr Kaluza’s condition was more like anxiety disorder, but that in recent times it resembled PTSD. He commented that the onset was in the early years of service, that Mr Kaluza had been treated for anxiety in 1972, and that the condition was established between 1968 and 1972. He opined that the illness had clinical recognition in 1972.
63. Dr Dinnen said that he disagreed with Dr Roberts who had maintained that Mr Kaluza’s continued association with the military precluded him suffering PTSD, and indicated that there were many in the Reserves who suffered PTSD and maintained that connection. We noted the Veteran’s own evidence that he maintained his association with the Air Force because that was all he knew, and he was financially reliant on the employment.
64. The Respondent relied on the report of Dr Roberts dated 4 May 2007 which was Exhibit R4. Dr Roberts commented on Mr Kaluza’s reports of having had psychiatric/psychological treatment between 1972 and 1976, but not having had any treatment for alcohol consumption, depression or anxiety between 1976 and 2003. Dr Roberts also noted the two DUI charges Mr Kaluza disclosed, in 1980 and 1981. Dr Roberts also recorded Mr Kaluza’s reports of memory and concentration problems.
65. In his oral evidence Dr Roberts pointed to the good employment record Mr Kaluza had with the Air Force, right up to 2005. He opined that based on research of which he knew, the dreams with repetitive themes which Mr Kaluza said he experienced were not reliable indicators as they varied by their very nature. He opined that without the physiological symptoms or clinical manifestations of anxiety, a diagnosis of anxiety could not be made. Dr Roberts also referred to the physical concomitants of anxiety, the “fight or flight” responses, but agreed when questioned, that the tests in DSM-IV did not require that. We noted that when asked about avoidance behaviour in regard to the military which Mr Kaluza did not demonstrate because he had served for a lengthy period in the Reserves, Dr Roberts opined that it was possible to have PTSD without avoidance behaviour, but that it would be unusual.
66. Dr Roberts had asked Mr Kaluza about his alcohol consumption, and reported alcohol withdrawal symptoms described to him by the Applicant. He commented on Mr Kaluza’s long record of work, and stated that he accordingly doubted the accuracy and extent of Mr Kaluza’s alcohol consumption as reported. He opined that the anxiety the Veteran reported in the USA in 1972 was in relation to family problems, and not experiences Mr Kaluza had in relation to his war service.
67. Dr Roberts diagnosed a degree of mild depression, dysthymia and that certain of the Applicant’s mannerisms suggested anxiety. He rejected the diagnosis of PTSD or an anxiety disorder.
68. We noted Mr Kaluza’s reliance on the following as a stressor; being in the company of sick and injured soldiers on flights from Vietnam to Butterworth in early 1968, where he claims he felt bad and helpless at the sight of their injuries and suffering. We were not satisfied that the stressor upon which Mr Kaluza relies meets the tests for exposure to a traumatic event as envisaged in the DSM-IV tests for PTSD. We do not accept that Mr Kaluza seeing sick and injured soldiers on flights indicate that he experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, and that his or any other person’s response involved intense fear, helplessness, or horror, or that the traumatic event is persistently re-experienced in the terms described in DSM-IV. He described feeling really bad and helpless on seeing the injured soldiers, rather than intense fear, or horror. We have also noted his reactions in regard to the card game on a casket on the flight from Butterworth to Perth on 24 February 1969, and find that he did not express what he felt then as intense fear or horror.
69. We also considered whether further tests in the other paragraphs of the definition of DSM-IV were satisfied, and could not be so satisfied.
70. In coming to a conclusion regarding whether Mr Kaluza suffers PTSD or anxiety disorder, we were mindful of the signs and symptoms he described over the years to the doctors who examined him. Although Mr Kaluza described recurring dreams, we did not find that those events were persistently re-experienced pursuant to the description in the DSM-IV, or that the Veteran exhibited a persistent avoidance of stimuli associated with the events, and numbing of general responsiveness.
71. We noted that Drs Reinhardt and Koller, both psychiatrists who treated Mr Kaluza, diagnosed PTSD. Dr Bell, the National Medical Director of HSA, also diagnosed chronic PTSD. Dr Dinnen who gave oral evidence at the hearing, said that he did not cavill with the diagnosis of PTSD, but opined that, given the history of anxiety in the 1970s, he preferred the diagnosis of anxiety disorder, indicating the onset was likely to have been in 1972.
72. We noted that Dr Roberts, who is also a psychiatrist, was the only doctor to examine Mr Kaluza who found that he suffered only mild depression and anxiety.
73. Dr Dinnen concluded that the most appropriate diagnosis was of generalised anxiety disorder associated with alcohol abuse although there were obvious features of post traumatic stress disorder, and stated that he not cavill at the diagnosis (of PTSD) as proposed by Dr Koller and Dr Reinhardt.
74. We reviewed all the evidence in relation to PTSD, and noted the evidence Mr Kaluza gave against the criteria in the DSM-IV definition. We preferred the evidence of Dr Dinnen who had considered the diagnosis of PTSD made earlier by treating psychiatrists Drs Koller and Reinhardt, but opined that anxiety disorder was a better fit. We did not accept that Mr Kaluza suffers PTSD, and moved accordingly to consider whether he suffers anxiety disorder,
75. Generalised anxiety disorder is described in DSM-IV as follows:
“generalised anxiety disorder” means a psychiatric disorder with the
following features:
A. Excessive anxiety and worry (apprehensive expectation), which
occur on more days than not for a continuous period of at least six
months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the
following six symptoms, with at least some symptoms present for
more days than not during the previous six month period:
(1). restlessness or feeling keyed up or on edge
(2). being easily fatigued
(3). difficulty concentrating or mind going blank
(4). irritability
(5). muscle tension
(6). difficulty falling or staying asleep, or restless unsatisfying
sleep; and
D. The focus of the anxiety and worry is not confined to features of
any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C.
above) cause clinically significant distress or impairment in social,
occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological
effects of a substance or a general medical condition and do not
occur exclusively during a mood disorder, a psychotic disorder, or
a pervasive developmental disorder;
76. The medical evidence we have considered to determine whether Mr Kaluza suffers anxiety disorder is that which we have discussed above in relation to the claim for PTSD.
77. We noted that in 1965, Mr Kaluza was admitted to sickbay and was seen by a psychiatrist who considered that his absence without leave was explained by a mild anxiety state, apparently derived from emotional problems in relation to his step-father.
78. Further that in 1972 when Mr Kaluza was sent to the United States, he became anxious and drank to excess due to home sickness for his parents and his wife. His evidence was that when he came back to Australia he reported having morbid thoughts and dreams, but did not want to reveal what they were about because of the stigma of a mental health problem, and the fact he only had a year to go for long service. There were medical reports of nervous tension by psychiatrists in 1972, and Mr Kaluza suffered an acute anxiety reaction (chest constricting feelings, a lot of flatus and belching, and colicky abdominal pain, sweating), with depressive overtones which we accepted were probably related to his separation from his parents. There were medical reports documenting further anxiety through the first half of 1973.
79. There were further reports in 1975 followed by an admission on the referral of Dr Koller to St John of God Hospital because of Mr Kaluza's serious alcohol problems in September 2003. In his claim of 2 October 2003, Mr Kaluza referred to symptoms of lack of sleep, nightmares, being short tempered, low self-esteem, suicidal thoughts, and excessive drinking. He also referred to an inability to concentrate, get on with people, or finish tasks. Mr Kaluza was diagnosed with PTSD and alcohol dependence by Drs Koller and Reinhardt. This was confirmed by Dr Bell (not a psychiatrist).
80. On 15 June 2004 and 2 March 2005, Dr Reinhardt noted that Mr Kaluza’s alcohol dependence was in remission but his residual PTSD symptoms meant he was TPI and not suitable for retraining. On 25 January 2005, Mr Pearman, a friend, referred to Mr Kaluza going to Vietnam on a number of occasions and of being a changed man to the one he knew (T15/96).
81. On 14 June 2005, Dr A Wong, an occupational physician, noted that neurological assessment on 16 May 2005 highlighted cognitive impairment as a result of chronic alcohol abuse. He noted that the diagnosis of PTSD was not universally accepted, but that anxiety disorder would also apply and, regardless of the diagnosis, Mr Kaluza was unfit for work and should be referred for Total and Permanent Incapacity Retirement (T16/98).
82. Examination and diagnosis by Drs Dinnen and Roberts whose opinions have been noted in the paragraphs above took place in 2007.
83. Dr Dinnen told the Tribunal that Mr Kaluza drank more heavily due to Vietnam, and he considered the Applicant suffered from alcohol abuse, and later an anxiety condition. He considered that the alcohol became a problem toward the end of the 1960s, and certainly became established between 1968 and 1972. He thought the diagnosis from 1972 to 1975 was a generalised anxiety disorder but it was more like PTSD from 2003, although he was not convinced of that diagnosis. He thought the onset of the anxiety disorder was in 1969 or 1970, and that this was indicated by Mr Kaluza’s heavy drinking, but noted it was not diagnosed clinically until 1972. He later stated that he thought the anxiety condition had been present throughout the years, and varied, and that this was the natural history of the condition.
84. Dr Dinnen also testified that the position in 1972 would fit the diagnosis of anxiety disorder not otherwise diagnosed, with elements of panic disorder. He thought that was an acute anxiety disorder then with a generalised anxiety disorder from 1972 to 1975.
85. On 4 May 2007, Dr Roberts wrote that Mr Kaluza had no physiological symptoms of heightened anxiety, and that this would preclude a diagnosis of PTSD. It would also be most peculiar for a person with PTSD to maintain an association with the military, he opined. He noted that Mr Kaluza and his wife live separately under the one roof due to his alcohol ingestion, and stated that Mr Kaluza did not mention other personal, domestic, or sexual problems, other than financial. Dr Roberts thought the account of identical dreams was that of a malingerer, and found Mr Kaluza’s presentation consistent with mild depression and anxiety, with no evidence of cognitive impairment. He thought the stressors were not sufficient for PTSD, and stated that there was no significant stressor on service. We noted that the Respondent relied on the report of Dr Roberts.
86. We were mindful that Mr Kaluza was diagnosed with PTSD by psychiatrists Drs Reinhardt and Koller, and Dr Bell who is not a psychiatrist. Dr Roberts diagnosed the Veteran as not suffering anything more than minor anxiety symptoms, and we noted that Dr Dinnen stated as follows:
“The development of an anxiety condition while he was posted to USA, including apparently hospitalisation, and followed by a lengthy period of outpatient psychiatric management on his return to Australia is consistent with the condition recently diagnosed….
I believe the most appropriate diagnosis is that of generalised anxiety disorder, although there are obvious features of post traumatic stress disorder and I do not cavill at the diagnosis proposed by Dr Koller and Dr Reinhardt in this regard….”
87. We noted Mr Kaluza’s evidence, and that of the doctors, in particular Dr Dinnen, that he exhibited certain symptoms of PTSD. Dr Dinnen had documented his anxiety before operational service when he was in sickbay in 1965, and when he travelled to the USA in 1972, followed by the anxiety he exhibited after operational service. We were satisfied as a result of that sequence of events that pursuant to the tests in DSM-IV, Mr Kaluza suffers anxiety disorder.
88. We were satisfied from the evidence of the Veteran, 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, and had been so since he was first treated for the condition in 1972.
DOES MR KALUZA SUFFER ALCOHOL ABUSE OR ALCOHOL DEPENDENCE
89. Mr Kaluza has claimed that he suffers alcohol abuse or alcohol dependence. The diagnosis of alcohol dependence was accepted by the VRB although it rejected the condition as war-caused, so it falls to us to decide whether the Applicant suffers either alcohol abuse or alcohol dependence, and if so, ultimately whether the condition is war-caused.
90. Mr Kaluza told us that 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). 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.
91. Mr Kaluza told us 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)
92. A record at T3/27 of WG Cdr Isbister of 11 August 1972, notes that Mr Kaluza was having two beers each day. A further record made on 9 October 1972, (T3/25) notes he drinks four to five schooners a day, and, “LFT’s show some mild liver damage probably secondary to alcohol.” We were mindful that typically, reports of drinking by patients are known to be inaccurate. An undated report post November 1975, notes that Mr Kaluza commenced heavy drinking and suffered from anxiety whilst in USA in 1972 (T3 /15).
93. Mr Kaluza told the Tribunal that in about 1977 or 1979, he had a punch-up with a subordinate at a Christmas Party, and that he was warned he could be dismissed. By 1980 and 1981, Mr Kaluza had two DUI charges, and sought assessment for alcohol rehabilitation. Mr Kaluza testified that he had a child of three or four at the time of the second DUI, his wife was pregnant, and he thought that if he sought rehabilitation everyone on the Base know him as a drunk. He said that he was given the option to do a course with Alcoholics Anonymous, following which he was abstinent for 12 months.
94. However the Veteran said that from 1982, he drank alcohol to excess. He had a breakdown in 2003, and was admitted to St John of God Hospital.
95. We noted that on 23 October 2003, Dr Reinhardt referred to Mr Kaluza drinking since Vietnam, with DUIs in 1981 and 1982 and loss of licence, abstention for four months, and continued drinking since that time. His then current intake was six to seven beers, and approximately 1/3 of a bottle of Scotch (T1/76). She noted that there had been some improvement in his anxiety in 1972, but that he was treated for ongoing anxiety with increasing quantities of alcohol (T11/ 77).
96. Dr Koller reported on 18 December 2003 that Mr Kaluza complained of heavy drinking, drinking to sleep, binge drinking of eight or nine schooners, and often more mixed with Scotch. He reported that the heavy drinking started in the Air Force where one drank to be part of the team (T7/66), that Mr Kaluza had been aware of the effects of alcohol, but that attempts to control his drinking had failed (T7/69).
97. On 8 March 2004, Dr Bell wrote that throughout his time in Vietnam and thereafter, Mr Kaluza was drinking heavily, and that he has been a binge drinker ever since his anxiety disorder in the USA. She noted that he has used alcohol to calm himself when his anxiety symptoms and sleep disturbance have been exacerbated. She also noted the two DUIs following which he was abstinent for about 12 months (T15/92).
98. On 14 June 2005, Dr A Wong, an Occupational Physician, noted Mr Kaluza had resumed drinking six to seven beers, and two glasses of wine or Scotch daily in the previous three months, and thus his related cognitive impairment was likely to be permanent (T16/98).
99. In a Lifestyle Rating form dated 18 April 2006, (T21/124), Mr Kaluza stated that he depended on alcohol or pills to get to sleep, drinking caused major hassles with family and friends, and he shied away from groups because of his drinking.
100. Before the VRB on 27 April 2006, Mr Kaluza gave a history of his drinking and anxiety. We noted that he told the VRB he had not wanted to discuss the morbid dreams about Vietnam which he started to get while in the USA (T22/136).
101. Dr Butler, a Consultant Physician, recorded a history of Mr Kaluza’s drinking in his report of 18 April 2007. Dr Butler estimated the Veteran was consuming in excess of 600 grams weekly by 1972. He noted that in 1980 and 1981, DUIs led to abstinence for about a year, but then a return to previous habits. Following the admission to St John of God in 2003, Mr Kaluza was again abstinent, but only for about a year. Dr Butler also diagnosed hypertension as commencing from 1975 when Mr Kaluza was first treated with medication for the condition.
102. On 22 March 2007, Dr Dinnen reported that, because of his drinking, Mr Kaluza took a friend’s advice and went to the Vietnam Veterans Association. He noted that the Veteran continues to binge drink, usually eight to ten beers, and Scotch, when he drinks heavily. Dr Dinnen also recorded a consistent history regarding the commencement of Mr Kaluza’s drinking when he joined the Air Force in 1963, with increases when he was posted to 37 Squadron in 1966/1967. Dr Dinnen noted that the Veteran realized he had a problem in 1972, and that now he and his wife have lived separately under the one roof for 10 years “maybe because I always hit the bottle”.
103. Dr Dinnen told the Tribunal that Mr Kaluza drank more heavily as a result of Vietnam. He considered the Veteran suffered from alcohol abuse, and later an anxiety condition. He considered that the alcohol became an established problem toward the end of the 1960s, but certainly between 1968 and 1972.
104. On 4 May 2007, Dr Roberts recorded a history given by Mr Kaluza of being a binge drinker who has consumed eight to nine stubbies, and in excess of 1/3 of a bottle of Scotch a couple of times of week for more than 20 years. Dr Roberts told the Tribunal that having regard to documentation about alcohol not affecting Mr Kaluza’s work or marriage, caused doubts about the level of drinking Mr Kaluza reported.
105. 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.
106. Mr Colborne submitted that none of the doctors (apart from Dr Roberts), cavilled with the history given, and that it was consistent with the results of formal neuropsychological testing. He submitted that the Tribunal can be satisfied that Mr Kaluza does have cognitive impairment consistent with chronic alcohol abuse.
107. Mr Colborne submitted that all the evidence (with the exception of Dr Roberts’), points to Mr Kaluza having a long standing drinking problem. He submitted that the more difficult question was whether it should be characterized as alcohol dependence or alcohol abuse. A possibility was that the Applicant initially had alcohol abuse, and it subsequently evolved into alcohol dependence, he submitted.
108. Mr Colborne submitted that as to alcohol dependence, there was a long history of Mr Kaluza trying unsuccessfully to reduce his intake, including an attendance at a rehabilitation program in 1982, and his admission to St John of God Hospital in 2003. There was also Mr Kaluza’s evidence of the problems it caused for his family.
109. Mr Colborne submitted that if the Tribunal was not satisfied that Mr Kaluza suffers from alcohol dependence, then there is little doubt that he suffers from alcohol abuse. He based this upon the evidence Mr Kaluza gave regarding the effects on his family which have led to a marriage break-up, and the two DUIs which probably constitute recurrent alcohol use in situations in which it is physically hazardous. Mr Colborne, noting that the Applicant only has to meet one of the requirements within a 12 month period, submitted that the two DUIs were also probably enough to constitute recurrent alcohol-related legal problems.
110. Mr O’Reilly submitted that the Respondent relied on the reports of Dr Roberts who doubted the account Mr Kaluza gave of his drinking, opined that it did not fit with him holding down a job in the Air Force for so many years, and opined that the Applicant did not suffer alcohol dependence.
111. We have noted the tests from DSM-IV with regard to the diagnosis of alcohol abuse and alcohol dependence as follows:
“alcohol dependence” means the presence of a constellation of
cognitive, behavioural and physiological symptoms indicating the
use of alcohol despite significant alcohol-related problems. The
pattern of repeated self administration may result in tolerance,
withdrawal and compulsive alcohol use behaviour.
The diagnostic criteria for alcohol dependence are those specified
in DSM-IV, and are as follows:
A maladaptive pattern of alcohol use, leading to clinically
significant impairment or distress, as manifested by three
(or more) of the following, occurring at any time in the
same 12-month period:
(1) tolerance, as defined by either of the following:
(a) a need for markedly increased amounts of
alcohol to achieve intoxication or desired
effect
(b) markedly diminished effect with continued
use of the same amount of alcohol
(2) withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for
alcohol
(b) the same (or closely related) substance is
taken to relieve or avoid withdrawal
symptoms
(3) alcohol is often taken in larger amounts or over a
longer period than was intended
(4) there is a persistent desire or unsuccessful efforts to
cut down or control alcohol use
(5) a great deal of time is spent in activities necessary to
obtain alcohol, use alcohol or recover from its
effects
(6) important social, occupational or recreational
activities are given up or reduced because of alcohol
use
(7) alcohol use is continued despite knowledge of having
a persistent or recurrent physical or psychological
problem that is likely to have been caused or
exacerbated by alcohol;
“alcohol abuse” means the presence of cognitive, behavioural or
physiological symptoms indicating the use of alcohol despite
significant alcohol-related problems, however these symptoms
have never met the criteria for alcohol dependence. Additionally,
signs of tolerance or withdrawal are absent.
The diagnostic criteria for alcohol abuse are those specified in
DSM-IV, and are as follows:
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
(2) recurrent alcohol use in situations in which it is
physically hazardous
(3) recurrent alcohol-related legal problems
(4) continued alcohol use despite having persistent or
recurrent social or interpersonal problems caused or
exacerbated by the effects of alcohol
B. The symptoms have never met the criteria for
alcohol dependence.
The definitions for alcohol dependence and alcohol abuse exclude
acute alcohol intoxication in the absence of alcohol dependence or
alcohol abuse.”
112. We have considered Mr Kaluza’s evidence and that of his doctors, mindful that reporting of alcohol consumption can be unreliable. However what we have observed from the doctors’ reports detailed above, and are satisfied to find is a consistent pattern of increase in Mr Kaluza’s alcohol consumption after he joined the Air Force, particularly after 1972 when Mr Kaluza was sent by the Air Force to the USA. We have noted that he suffered anxiety there, in part at least because of separation anxiety from his family), and drank heavily, followed by two DUI charges (1980 & 1981), and a trial of Alcoholics Anonymous. After a year or so of abstinence from alcohol, Mr Kaluza commenced drinking again, and was admitted to rehabilitation in 2003. We are satisfied from the evidence before us that none of these initiatives have been successful in the long term.
113. We were mindful of the reports of Drs Koller, Bell, Wong, Roberts, Reinhardt and Dinnen who recorded consistent reports of Mr Kaluza’s drinking which we are satisfied, qualified him for the diagnosis of alcohol abuse pursuant to DSM-IV. We noted that Dr Roberts did not entirely believe Mr Kaluza as to his level of drinking because he said that the alcohol consumption appeared not to have affected Mr Kaluza’s work or marriage. We preferred the consistent reports given to the other doctors who reported on Mr Kaluza, noting that the Veteran’s marriage has indeed 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.
114. We were mindful that pursuant to DSM-IV, alcohol dependence involves a maladaptive pattern of alcohol use, leading to clinically significant impairment or distress which Mr Kaluza demonstrated periodically such as in 2003 when he was admitted to St John of God Hospital.
115. We noted however that he continued to work for the Air Force for many years after discharge, and whilst the evidence suggests the presence of cognitive and behavioural symptoms indicating the use of alcohol despite significant alcohol-related problems, these symptoms do not meet the criteria for alcohol dependence. For example, signs of tolerance or withdrawal are absent but the Applicant had two driving convictions for recurrent alcohol use, and interpersonal problems in his marriage. Accordingly we were satisfied that the diagnosis of alcohol abuse was more appropriate.
116. In order to determine the clinical onset of alcohol abuse we took into account the decision of Lees CITATION where the Court stated that all of the required symptoms had to be displayed. We were satisfied on the basis of Dr Dinnen and WG Cdr Isbister’s reports that Mr Kaluza’ alcohol abuse was established by 1972.
DOES MR KALUZA SUFFER HYPERTENSION
117. 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. Mr Kaluza appealed the VRB decision to this Tribunal, which now has to first decide whether the Veteran suffers hypertension.
118. Mr Colborne submitted that on 19 July 1972, Mr Kaluza’s blood pressure was 150/90 after 5 minutes lying down (T3/28), and that on 26 July 1972, Mr Kaluza was found to be suffering from mild hypertension. On 11 August 1972, a reading of 145/95 was the lowest of a number of readings. This was followed in September 1973, by a blood pressure reading of 130/85 (T21/118), and on 17 November 1975 , the Applicant had blood pressure readings of 160/110 lying, and 150/120 standing (T21/118).
119. Mr Colborne submitted that Mr Kaluza has been on medication for hypertension from 1976 (T21/119), and that the Veteran stated that he first became aware of his hypertension in 1973 (T6/49). He submitted that the VRB found that Mr Kaluza had been hypertensive since July/August 1972 (T22/143).
120. Mr Colborne submitted that on 18 April 2007, Dr Butler, Consultant Physician noted that Mr Kaluza had a normal blood pressure reading of 130/85 in September 1973, and wrote that the higher readings on 17 November 1975 should be regarded as the clinical onset of hypertension.
121. The Respondent accepted that Mr Kaluza suffers hypertension with a clinical onset in November 1975 as diagnosed by Dr Butler.
122. We noted the medical evidence and the VRB’s finding that Mr Kaluza has suffered hypertension since 1972. We accepted however that Dr Butler (Exhibit A2), considered 1975 when therapy was commenced, should be regarded as the clinical onset of hypertension (Lees).
DOES MR KALUZA SUFFER CONDITIONS WHICH ARE WAR-CAUSED
123. 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 found that Mr Kaluza does not suffer PTSD or alcohol dependence, so we do not need to further deal with those.
124. 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, (ie 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:
1The 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.
2If 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.
3If 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.
4The 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.”
125. 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.”
126. We turned then to decide whether, applying the principles set out in Deledio (supra), the material before us raises an hypothesis connecting Mr Kaluza’s conditions of anxiety disorder, alcohol abuse and hypertension with his war service. It is their onset, conformity with the relevant SoPs, and the decision whether they were war-caused pursuant to the legislation which were in issue.
127. 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 that the following SoPs were relevant:
Statement of Principles concerning Generalised Anxiety Disorder Instrument No.1 of 2000, & Instrument No.101 of 2007 concerning Anxiety Disorder
Statement of Principles concerning Alcohol Dependence or Alcohol Abuse - Instrument No. 76 of 1998, Instrument No.17 of 2008
Statement of Principles concerning Hypertension - Instrument No.23 of 2003 as amended by Instrument No.3 of 2004, Instrument No.11 of 2008
DOES MR KALUZA SUFFER ANXIETY DISORDER AND ALCOHOL ABUSE WHICH ARE WAR-CAUSED
128. We moved then to consider whether a reasonable hypothesis can be raised linking Mr Kaluza’s anxiety disorder and alcohol abuse to his war service. In doing so, we were required to apply the principles in Deledio (supra), which have been reproduced in the paragraphs above.
129. With respect to determining when an hypothesis is reasonable, we were mindful of Heerey J's approach in Deledio v Repatriation Commission (supra) which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (supra), and approved in Deledio (supra).
130. 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 conditions of anxiety disorder and alcohol abuse with his war service. It was the onset, conformity with the relevant SoP, and the decision whether they are war-caused pursuant to the legislation which is in issue.
131. Given the principles enunciated in Gorton (supra) and Keeley (supra), we accept that Instrument No.1 of 2000 and Instrument No.101 of 2007 may be applied in Mr Kaluza’s case with regard to his condition of anxiety disorder. We noted that for the purpose of applying Instrument No.101 of 2007, anxiety disorder means GAD and other forms of anxiety disorder. The relevant SoPs for alcohol abuse are Instrument No.76 of 1998 and Instrument No. 17 of 2008.
132. In applying Deledio (supra), and considering whether an hypothesis can be raised linking Mr Kaluza’s conditions of anxiety disorder and alcohol abuse with his war service, we considered all the material raised before us, including the Veteran’s claims regarding stressful events or stressors he experienced, being the carriage of injured soldiers on a flight in 1968 on which he said he travelled, his reactions of feeling really bad and helpless, and the card game played on a casket which he was asked to join during a flight from Butterworth to Perth on 24 February 1969, and the death of his friend Noel. He described his reaction to the card game as making him upset and haunting him for life.
133. The raised facts which would point to a hypothesis included Mr Kaluza’s description of being in the company of sick and injured soldiers on a flight from Vietnam to Butterworth in early 1968, with medical people in attendance, where he claims he felt “really bad” and “I guess helpless” at the sight of their injuries and suffering. He said with regard to the flight in 1968 that:
“…probably 20 soldiers, 20, maybe a bit more soldiers that were quite injured …. I do remember seeing those poor soldiers, they had bandages all over them. Some had intravenous tubes. I mean, I felt really bad and I guess helpless, I couldn’t help them, I was just fit and supposedly looking at these poor unfortunate blokes”. (Transcript p11)
134. Mr Kaluza also described, during a flight from Butterworth to Pearce on 24 February 1969, being 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 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)
135. One of the Applicant’s best friends, Noel, was killed in Vietnam; Mr Kaluza was not claiming this event as a stressor in relation to war-caused injury or disease.
136. A hypothesis connecting Mr Kaluza’s condition to his war service would be pointed to by the occurrences discussed above if they had occurred during operational service. However we have found in the paragraphs above that we are satisfied Mr Kaluza only served on operational service on 22 February 1969 and 20 November 1970.
137. Mr Kaluza’s evidence was that he witnessed the transport of wounded soldiers in 1968. We were satisfied he did not have operational service in 1968, so any ill effects or illness he suffered from witnessing the transport of wounded soldiers cannot be war-caused.
138. Mr Kaluza’s evidence was also that he was asked to play cards on a casket during a flight between Butterworth and Pearce on 24 February 1969. We have found in the paragraphs above that the flight on 24 February 1969 was not on operational service. Accordingly any ill effects or illness he suffered from being invited to play cards on the casket cannot be found to be war-caused.
139. We do not need to further consider the Deledio steps, and Mr Kaluza’s claim that his anxiety disorder and alcohol abuse are war-caused must fail.
IS MR KALUZA’S HYPERTENSION WAR-CAUSED
140. 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.
141. With respect to determining when an hypothesis is reasonable, the Tribunal was mindful of Heerey J's approach in Deledio v Repatriation Commission (supra) which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (supra), and approved in Deledio (supra).
142. The raised facts pointing to a 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. Dr Roberts had doubts about the level of alcohol consumption reported.
143. Accordingly a consideration of all the material before the Tribunal indicates the raised facts point to a hypothesis connecting Mr Kaluza’s drinking with war service.
144. We moved then to consider the appropriate SoP’s, and given the principles enunciated in Gorton (supra), and Keeley (supra), we noted that Instruments No.23 of 2003 as amended by Instrument No.3 of 2004, were the SoPs available at the time of the Respondent’s decision, and that a further SoP now applies, being Instrument No.11 of 2008.
145. Instrument No.35 of 2003 as amended by Instrument No.3 of 2004 is more favourable to the Applicant, so 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.
146. 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;
147. 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 evidence before us fits the template in the relevant SoP, and points to a reasonable hypothesis linking Mr Kaluza’s hypertension to his war service.
148. 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”
149. Material before the Tribunal raised the hypothesis that Mr Kaluza suffered anxiety disorder from 1972 and accordingly, the hypothesis would fit the template in Factor 5(n), and indicate a reasonable hypothesis has been raised linking Mr Kaluza’s hypertension to his war service.
150. 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 and 2004, and fit the template.
151. Consideration of all the material before the Tribunal pointed to the raising of an hypothesis linking Mr Kaluza’s hypertension to his war service. The Tribunal considered that the hypothesis linking Mr Kaluza’s hypertension with his alcohol abuse was neither contrary to known scientific facts, neither too remote, nor otherwise fanciful. Thus a reasonable hypothesis was in place linking Mr Kaluza’s hypertension with his war service.
152. 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.
153. We accepted the evidence of the Applicant that he had escalated his drinking seriously during his trip to the USA in 1972 due to personal problems and missing his family, 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.
154. 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.
155. However we were satisfied beyond reasonable doubt that Mr Kaluza’s alcohol abuse was not war-caused and that whilst there was a temporal connection with the date of onset of his hypertension, we are satisfied beyond doubt that the hypertension is not war-caused.
156. 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 although Mr Kaluza suffers hypertension it arises out of his non war-caused conditions. We are satisfied beyond reasonable doubt that the Applicant’s condition of hypertension is not war-caused.
DECISION
157. The Tribunal varies the decision under review and finds that Mr Stanislaw Kaluza suffers from anxiety disorder, alcohol abuse and hypertension, but not PTSD or alcohol dependence. The Tribunal finds that none of the conditions claimed or diagnosed are war-caused.
I certify that the 157 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member G Ettinger and Dr M E C Thorpe, Member
Signed: [sgd]
AssociateDates of Hearing 17 October 2007, 4 February 2008
Final Written Closing Submissions 31 March 2008
Date of Decision 14 May 2008
Counsel for the Applicant Mr C Colborne
Advocate for the Respondent Mr T O’Reilly
4
9
0