Bui and Repatriation Commission

[2005] AATA 771

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 771

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1017

VETERANS'  APPEALS  DIVISION		)
Re		NHU SON BUI

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date12 August 2005

PlaceSydney

Decision The decision under review is affirmed

.................................................

Ms N Bell
  Senior Member

VETERANS’ AFFAIRS – Claim for Invalidity Service Pension – Claim Rejected on Basis that Applicant Does Not Have Continuing Inability to Work – Weight of Medical Evidence Against Applicant – Decision Under Review Affirmed

Veterans’ Entitlements Act 1986

REASONS FOR DECISION

12 August 2005 Ms N Bell, Senior Member

1.      Mr Bui was born on 13 August 1951 in Hanoi, Vietnam and arrived in Australia on 1 September 1993.  He became an Australian citizen on 1 December 1995.  In 1969, in Vietnam, Mr Bui enlisted in the armed forces of the Republic of Vietnam and attended a cadet training course for six months, graduating as an Infantry Officer in April 1970. 

2.      Mr Bui claimed invalidity service pension on 30 January 2003, in respect of his contended conditions of post-traumatic stress disorder, ununited fracture tibia and fibula, cervical spondylosis and unilateral hearing loss.  That application was rejected by the Repatriation Commission on the basis that Mr Bui is not permanently incapacitated for work.  On review, the decision was affirmed.

the legislative context

3. Section 37 of the Act sets out the requirements for eligibility for invalidity service pension as follows:

“Eligibility for invalidity service pension

(1) Subject to subsection (6), a person is eligible for an invalidity service pension if the person:

(a) Is a veteran; and

(b) has rendered qualifying service; and

(c) is permanently incapacitated for work in accordance with a determination under section 37AA.

4. Section 37AA provides that the Commission must, by a determination that is a disallowable instrument, specify the circumstances in which persons are permanently incapacitated for work for the purposes of section 37 (1) (c).

5.      The relevant determination is the Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999.  Paragraph 5 of that determination provides:

“Circumstances of permanent incapacity

(1) A person is permanently incapacitated for work for paragraph 37(1)(c) of the Act if the person:

(a)  is permanently blind in both eyes; or

(b) is a veteran to whom section 24 of the Act applies; or

(c)  satisfies subsection (2).

(2)  A person satisfies this subsection if:

(a)  the person has an impairment that, if it were an injury or disease for the Guide to the Assessment of Rates of Veterans’ Pensions, would result in a combined impairment rating of 40 or more under Table 18.1 in that Guide; and

(b)  solely because of the impairment, the person is permanently unable to do work for periods adding up to more than 8 hours per week; and

(c)  the Commission is satisfied that the impairment is permanent.”

the issues

6. There is no dispute that Mr Bui has qualifying service as a veteran within the meaning section 37 of the Veterans’ Entitlements Act 1986 (“the Act”).  The issues to be considered in this application are therefore whether Mr Bui has a combined impairment rating of 40 or more under the Guide to the Assessment of Rates of Veterans’ Pension (“GARP”) and whether, solely because of his impairment, he is permanently unable to do work for periods adding up to more than eight hours per week.  In addition, Mr Bui’s impairment must be permanent.

7.      I note that Mr Bui agreed to be bound by the assessment done by Dr M Burns, Occupational Physician, of his physical conditions.  No other evidence in relation to assessment of those physical conditions was before the Tribunal.  A range of assessments was provided to the Tribunal in relation to Mr Bui’s psychiatric or psychological symptoms.  The lowest of those assessments yields, together with Dr Burns’s assessment, a total of 41 points under the GARP.  On the evidence before me, Mr Bui therefore satisfies paragraph 5(2)(a) of the determination.

8.      There remains the question of whether Mr Bui, solely because of his impairment, is permanently unable to do work for periods adding up to more than eight hours per week and whether the impairment itself is permanent.

evidence

9.      Mr Bui gave evidence of his experiences in the army in Vietnam including the wounds he sustained and the events he witnessed.

10.     He said he attempted escape from Vietnam several times and was jailed in one of these attempts.  He was finally successful in 1990 and eventually arrived in Australia in 1993.

11.     Mr Bui said that in Australia he had many short-term jobs, mainly labouring and as a general hand.  He said that none of these jobs lasted because he had a problem with his vision and because he is slow moving.

12.     Mr Bui said he completed full-time a degree in Mathematics at the University of Technology in Sydney, commencing in 1996 and finishing in 1999.  He said he also did a bridging course in teaching at Liverpool TAFE but did not finish.  He said he enrolled in a welding course in 1999 but had to stop because the smoke made him cough.  He said he has tried to find a job but has not been successful.  Mr Bui maintained that he cannot work because of his health, poor memory and inability to concentrate.  Mr Bui said that he began to lose concentration about four years ago.

13.     Mr Bui said that in average day he will get up late, feed his cats and do some cleaning and shopping.  He described himself as very forgetful, leaving items at the checkout in the supermarket and on the train.  Mr Bui said he sometimes reads the newspaper or watches football on television and on the weekends he just stays home.  He said he has a driver’s licence but has not driven for the last two years.  Mr Bui added that he avoids going out because he does not want to see people.

14.     Mr Bui said he generally falls asleep at about 10:00pm but wakes up at 1:00am and cannot sleep again.  He said it is the same every night.  He said that a few times per week he sleeps in and has bad dreams about the war, including dead people, people chasing him and weapons, and in the dreams he talks to his soldiers.  He said he wakes up sweaty and tired and he is tired during the day.

15.     He said he has problems with his wife because he is very cranky with her and gets angry with her for no reason.  He met his wife in Vietnam and married her there in 1997.  He sponsored her migration to Australia and signed a marriage certificate in Australia.

16.     Mr Bui said he and his wife have begun the invitro fertilisation program recently.  He said he does not want a child but his wife does and she is paying the several thousand dollars required.  Mr Bui said that at the interview with the IVF clinic he told them his life had no meaning and it was finished.  However, he and his wife have been accepted into the program.

17.     Mr Bui said that he used to have friends but does not want to have friends any more and he does not go out at all.  However, later he said that many friends of his who spent less time in the army and have no injury, are in receipt of a veterans’ pension.

18.     Mr Bui agreed that he has had many trips to Vietnam since 1995.  He agreed that since then he has spent a total of 76 weeks in Vietnam. 

19.     When questioned as to whether he had ever worked as a maths tutor, Mr Bui said he had taught several children but agreed he had described himself to Dr Law, his treating psychiatrist, as a factory worker and did not tell him that he was a tutor.  Mr Bui said that tutoring was not his main occupation.  He said he last worked in 2000, doing a job in a job network office.  The longest time he has had a job is for four to five months.

20.     Mr Bui said that he first consulted Dr Law on referral from Dr Pope to whom he had, in turn, been referred by friends who had obtained the pension with Dr Pope’s assistance.  Mr Bui said that when he sees Dr Law, who does not speak Vietnamese, they use English, Vietnamese and body language.  He said the average appointment lasts for 15 to 20 minutes but there is a very long waiting time for appointments.  Mr Bui said he tells Dr Law about his sleeping, concentration, memory problems and Dr Law just gives him a prescription and tells him he “must suffer whatever his fate is”.

21.     Dr S K Law, Consultant Psychiatrist, said he has been Mr Bui’s treating psychiatrist since September 2002.  He said that Mr Bui suffers from post-traumatic stress disorder, having been exposed to a life threatening stressor.  He said he displays most of the diagnostic criteria in DSM IV, and in particular recurrent bad dreams and recollections, partial forgetfulness, flash-backs, a heightened anxiety level and depression.  Dr Law stated that Mr Bui’s experience of being shot in the leg gave rise to fear, helplessness and horror.

22.     Dr Law said that in 2002/2003 Mr Bui consulted him six times and then he did not see him for one year and then saw him in August and December 2004 and in March and April 2005.  Other symptoms that Dr Law observed in Mr Bui were poor concentration, headache and broken sleep.

23.     Dr Law considered it unlikely that Mr Bui could work for eight hours per week or more.  Dr Law said that when he speaks to Mr Bui he uses English and body language to express himself.  He said that sessions of 15 to 20 minutes are not unusually short because he does not provide psychotherapy.

24.     Dr Law said he has referred Mr Bui for trauma counselling and thinks this will assist him.  He said he does not consider Mr Bui to be permanently impaired and suggested he may get better in three or four years.  He said he does not think Mr Bui had post-traumatic stress disorder before his arrival in Australia but he does consider that its clinical onset was several years before Mr Bui consulted Dr Law.

25.     When asked about Mr Bui’s education history he said he understood Mr Bui to have had 12 years of schooling in Vietnam and that he began a science degree there.  Dr Law said Mr Bui had not told him that he had worked as a tutor and all he knew was that Mr Bui had done factory work.

26.     Dr Law said he based his view that Mr Bui is unable to work on his symptoms of headache, forgetfulness and feelings of depression.  He said as far he is aware Mr Bui’s headaches are not being investigated.  Dr Law also confirmed Mr Bui’s forgetfulness includes misplacing his car keys or leaving shopping somewhere.  He judged him to have feelings of depression from his downcast expression and Mr Bui’s behaviour in his surgery and the things Mr Bui told him.  Dr Law has prescribed Deptran 50mg at night to help Mr Bui sleep.

27.     Dr M Burns, Occupational Physician, in various reports, offered the opinion that, while Mr Bui does have some restrictions on his work capacity, he is not incapable of working and could work at least for eight hours per week.  His reports noted Mr Bui’s attendance at university in Vietnam and considered that Mr Bui could do some clerical work.

28.     In oral evidence to the Tribunal Dr Burns expressed surprise that Mr Bui had completed a degree in Mathematics and said Mr Bui had not told him about that.  He said that the completion by Mr Bui of that degree makes a substantial difference to his assessment and shows that he has a good intellect.  He considered it indicates he would be capable of concentrating for long periods of time.  Dr Burns readily admitted he has no psychiatric qualifications and said he based his assessment of Mr Bui’s psychiatric condition on the report by Hanh Nguyen, Psychologist, dated 10 October 2003.  In that report, the psychologist noted that Mr Bui presented with residual elements of post-traumatic stress disorder although the overall condition does not fulfil the criteria for such a diagnosis as provided by DSM-IV.  The psychologist noted Mr Bui’s low level of concentration, distractibility, lack of drive and motivation.

29.     I note that, in his report of 27 August 2004, Dr Burns expressed the view that the major problem for Mr Bui is that he has decided that he does not want to return to work.

30.     Dr Yvonne Skinner, Consultant Psychiatrist, in a report dated 11 March 2005, stated that Mr Bui is not suffering from any psychiatric disorder or psychological condition that would affect his capacity for employment.  Dr Skinner noted that Mr Bui claims some problems with memory such as losing his glasses and keys or leaving the shopping behind but that he stated his concentration is reasonably good.  Mr Bui told Dr Skinner about his nightmares but said he feels happy and safe in Australia.  He described himself as irritable but said he has good and close relationship with his wife.  Dr Skinner noted that Mr Bui told her that he is not able to work because of his physical condition.

31.     Dr Skinner described Mr Bui as pleasant, polite and cooperative, with an affect that was appropriate and responsive and noted he was able to smile.  She said there was no evidence of any cognitive deficits.  Dr Skinner said in her report that, on the basis of the symptoms noted by Dr Law in his reports, one could not diagnose post-traumatic stress disorder.

32.     In oral evidence Dr Skinner said she was unaware and had not been told by Mr Bui that he had completed a maths degree over 1993 to 1996.  She said that this suggests that he would be capable of work of a less manual nature including bookkeeping.  In relation to Mr Bui’s absent mindedness, she considered this state to be very common in the community.  She also noted that when people have been out of the workforce for a time their concentration skills can suffer and a period of readjustment for work is often necessary.

33.     Dr Skinner said the medication Deptran, prescribed for Mr Bui by Dr Law, is quite sedating and may be inappropriate for Mr Bui’s symptoms.

consideration

34.     The weight of the medical evidence in this application is against the conclusion that Mr Bui is permanently unable to work for periods adding up to more than 8 hours per week.

35.     While Dr Law, as Mr Bui’s treating psychiatrist, considered he is not capable of such work, on the basis of his claimed psychiatric condition.  Generally, it is appropriate to give additional weight to the evidence of a person’s treating practitioner.  However, I found Dr Law’s evidence to be somewhat superficial and of limited probative value.  I note that he conducted his interviews with Mr Bui without the assistance of an interpreter and during consultations of only 15 to 20 minutes.  I also note Dr Law’s evidence that Mr Bui’s contended condition of post traumatic stress disorder is not permanent.

36.     Dr Burns’ evidence, which canvassed all of Mr Bui’s conditions, was that he considered him capable of at least 8 hours work per week.  He was confirmed in this view when he learnt that Mr Bui had completed a degree in Mathematics in 1999.  I also note Dr Burns’ opinion that Mr Bui’s major problem is his lack of motivation to return to work.

37.     Dr Skinner’s view was that Mr Bui suffers from no psychiatric disorder, even on the basis of the symptoms reported by Dr Law.  Dr Skinner considered that Mr Bui’s lack of concentration and absentmindedness are due to his absence for a considerable time from the workforce and would improve after a period of readjustment.  His completion of a degree in Mathematics, in her view, indicated a high intellect and an ability to do work of a less manual nature.

38.     I consider Mr Bui overstated the limitations caused by his conditions.  In the histories he gave to examining doctors he failed to disclose, or at best glossed over, his degree in Mathematics and his work as a tutor.  He seems to have promoted the impression that he has only done, and been capable of, work of a manual nature.  I note Mr Bui’s evidence that he began to develop problems with concentration just four years ago but I also note his evidence of only short term, sporadic work for much longer than that.  I am also mindful that, over the last 10 years, he has spent some 72 weeks in Vietnam, comprised of many trips.  Mr Bui was very focussed, in his evidence, on the fact that a number of his friends, who in his opinion had less extreme experiences in Vietnam, are in receipt of the pension while he is not.

39.     On balance, I conclude that Mr Bui is not permanently unable to do work for periods adding up to more than 8 hours per week.  He therefore does not satisfy the requirements in paragraph 5 of the Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999, or, it follows, section 37 of the Act.

decision

40.     The decision under review is affirmed

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.

Signed:         ............[Linda Blue]..............................
  Associate

Dates of Hearing  9 June 2005, 22 July 2005
Date of Decision  12 August 2005
Solicitor for the Applicant          Vietnam Veterans' Association
Counsel for the Respondent     Miss R Henderson 
Solicitor for the Respondent     Department of Veterans' Affairs