Chau and Repatriation Commission

[2008] AATA 470

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 470

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/677

VETERANS' APPEALS DIVISION		)
Re		THANH LONG CHAU

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr I Alexander, Member

Date 6 June 2008

PlaceSydney

Decision The decision under review is set aside and instead the Tribunal decides that Mr Chau was eligible to receive an Invalid Service Pension.

..................SGD...........................

Ms N Bell, Presiding Member 

CATCHWORDS:

Veterans’ Affairs – Entitled to an Invalid Service Pension – Psychiatric Impairments – Post Traumatic Stress Disorder - Assessment – Incapacity for work - The Decision Under review is Set Aside .

RELEVANT ACT/S:

Veterans’ Entitlements Act 1986 s 37(1) (c)

Repatriation Commission v Warren [2007] FCA 866

Repatriation Commission v Hill (2005) 142 FCR 88

Dragojlovic v Director-General of Social Security (1984) 1 FCR 301

McDonald v Director-General of Social Security (1984) 1 FCR 354

REASONS FOR DECISION

6 June 2008 Ms N Bell, Senior Member
Dr I Alexander, Member    

1.      Mr Thanh Long Chau, served with a militia unit in South Vietnam from 1967 to 1973.  His accounts to the Tribunal and to various examining doctors include a history of participation in the Tet offensive, sustaining a severe head and leg injury in combat, consequent discharge from the Army, detention in a re-education camp in Vietnam following the Communist takeover, employment as directed under the Communist regime and eventual escape, by boat with his family, to Thailand.  Mr Chau arrived in Australia in 1983.

2.      Mr Chau claimed an Invalid Service Pension under the Veterans’ Entitlements Act 1986 (the VEA) in January 2003.  The medical report that accompanied the claim stated that Mr Chau suffered from Post Traumatic Stress Disorder (PTSD), Depression, Lumbar Spondylosis and arthritis of the left elbow.  The Repatriation Commission rejected Mr Chau’s claim, and confirmed that rejection on internal review, for the stated reason that he is able to work for more than 8 hours per week.

3.      Mr Chau sought review of the decision to reject his claim and relied only on his claimed psychiatric impairment.  However, we note that evidence relating to other conditions, including neurological and other physical effects, is now before us.  We will include those matters in our consideration of Mr Chau’s eligibility for an Invalid Service Pension.

Issues

4.      To qualify for an Invalid Service Pension a person must be a veteran who has rendered qualifying service and who is “permanently incapacitated for work” (section 37(1) (c) of the VEA).  The first requirement – qualifying service – is not disputed and we are satisfied that Mr Chau meets it.  The second requirement – permanent incapacity for work – is the focus of this application.

5.      The phrase “permanently incapacitated for work” is defined by the Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999 (“the Determination”) made in accordance with section 37AA of the VEA. Section 5(2) of the Determination provides that a person is permanently incapacitated for work if, relevantly:

a)        the person has an impairment that would attract a combined impairment rating of 40 or more under the Guide to the Assessment of Rates of Veterans’ Pensions (GARP); and

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

c)        the person’s impairment and inability to work are permanent.

6.      These requirements pose the issues in this application.

does mr chau have a combined impairment rating of at least 40 points?

7.      The condition relied on by Mr Chau for the purpose of this application is the psychiatric condition of PTSD.  In the course of the hearing, evidence of impairments arising from lumbar spondylosis and a possible neurological condition was also presented.  We will begin with the psychiatric condition.

8.      Dr A Dinnen, Dr S K Law and Dr J D Pickering, Consultant Psychiatrists, all reported on symptoms of PTSD, with Dr Dinnen and Dr Law diagnosing the condition and Dr Pickering diagnosing “a probable, partial syndrome of Post Traumatic Stress Disorder” with a Chronic Amnesic Disorder.

9.      In oral evidence, Dr Dinnen canvassed the diagnostic criteria for PTSD in DSM-IV and gave a detailed analysis of the ways in which Mr Chau demonstrates each of the criteria.  He described his symptoms, in line with the diagnostic criteria, as being “classically present”.  He also gave evidence of having spoken to Mr Chau directly, without an interpreter, then with the assistance of an interpreter and then of having spoken to Mr Chau’s son and drew on the information obtained from each of these conversations to support his opinion.  Dr Dinnen considered that Mr Chau did not suffer from any organically caused neurological deficit and concluded instead that his PTSD is the cause of any cognitive impairment.  In cross examination, Dr Dinnen was firm in his diagnosis and his opinion remained unchanged and, if anything, became more certain when he was asked to consider the report of Dr Skinner who had diagnosed no psychiatric condition.  We found Dr Dinnen’s evidence to be consistent and plausible and his opinion to be supported by careful and knowledgeable reference to the diagnostic criteria in DSM-IV.

10.     Dr Pickering’s report, although he diagnoses only a partial PTSD syndrome, is very supportive of the conclusions reached by Dr Dinnen.  Dr Pickering’s report is detailed and makes thorough reference to the diagnostic criteria in DSM-IV, mainly through the reporting of his administration of the Davidson SI-PTSD test.  It is noteworthy that Dr Pickering thought Mr Chau had “superficially almost met the criteria” on the basis of this test, but he was not convinced that Mr Chau’s memory problems are explainable on the basis of PTSD.  He noted that Mr Chau’s “problems with memory and concentration are out of proportion to the other symptomatology.”  However, Dr Pickering also noted that Mr Chau’s difficulties in expressing himself, relating a story and his reliance on an interpreter require allowance to be made for the likelihood that his history will be “diluted considerably in the process of information gathering and one would therefore be less stringent about applying strict criteria”.  Ultimately, however, Dr Pickering’s clinical impression was one of a “partial syndrome of PTSD does exist, principally manifested by distressing recollections, some avoidances, but minimal hyperarousal symptoms.”

11.     Dr Law’s diagnosis of PTSD is less detailed, in his reports to referring General Practitioner, Dr H Pope, than are the diagnoses of Dr Dinnen and Dr Pickering.  His reports add little other than evidence of another psychiatrist reaching a diagnosis of PTSD, but he details treatment with Deptran and a history broadly in alignment with that given to other psychiatrists.

12.     Dr Skinner, in her report and in her oral evidence, concluded that Mr Chau suffers from no psychiatric condition.  This is so notwithstanding that she allocated 15 points of functional impairment under the relevant table of GARP.  Dr Skinner made no reference to DSM-IV diagnostic criteria in her report but considered that Mr Chau had some symptoms of PTSD but insufficient to warrant a diagnosis of PTSD.  We were struck by her conclusion that Mr Chau had good and stable family relationships and that he is involved in church activities.  In her oral evidence Dr Skinner appeared at first to have obtained a history rather different to that obtained by Dr Dinnen and Dr Pickering.  For example, her description of Mr Chau’s family land social life was in marked contrast to the descriptions given by Mr Chau’s son to Dr Dinnen and to the Tribunal and, in some respects, Mr Chau’s evidence to the Tribunal and history given to Dr A Dinnen.

13.     On cross examination, it became apparent that Dr Skinner’s interpretations of some of the diagnostic criteria, such as impairment or distress in social or occupational functioning, set the standard at a level significantly higher and more exclusively than do Dr Dinnen or Dr Pickering.  It was also apparent that Dr Skinner obtained a history that was more limited than that obtained by Dr Dinnen and Dr Pickering and markedly more positive than that presented to the Tribunal by Mr Chau and his son.  For example, she concluded, from Mr Chau’s statement to her that he attends church prayer meetings, that he is involved in “church activities”.  In Mr Chau’s evidence to the Tribunal and his history given to Dr Dinnen was that he is taken to these meetings by his wife and that he sits with others and prays.  We consider that this falls significantly short of “church activities” which suggest, contrary to the evidence, an active participation and a reasonable level of social interaction. Our impression of Dr Skinner was that she employed a very strict interpretation of the diagnostic criteria, set the required degree of criteria symptoms very high and did not obtain as extensive a history from Mr Chau as did Dr Dinnen and Dr Pickering.

14.     A report from Dr G J George, Consultant Psychiatrist, dated 8 March 2003 gives a history of nightmares once or twice per week but postulated that they may be due to sleep being interrupted, by insomnia, when in a dream cycle.  He did not elaborate on why this might be an explanation for Mr Chau’s nightmares.  Dr George considered that Mr Chau had no flashbacks, even though he reported him as thinking of his war days when he saw people who were associated with the Vietnam War.  He noted that Mr Chau did not report any irritability, drug abuse or domestic violence and that he described himself as a calm person with harmonious relationships with his family.  This was in direct contrast to the evidence of Mr Chau and his son and with the histories taken by Dr Pickering, Dr Law and Dr Dinnen.  The picture of Mr Chau presented by Dr George was one of a man living happily with his family, seeing his friends, going fishing and enjoying gardening.  The contrast with other evidence before the Tribunal was stark.  He made much of Mr Chau’s attendance on Dr Pope (to whom he was referred by a Veterans’ assistance organisation) and to Mr Chau’s reaction when asked about it and the importance of this was not made clear by Dr George.

15.     On balance, we find the evidence of Dr Dinnen and Dr Pickering most convincing because they describe in detail, from different sides of the medico-legal table, a man with a range of emotional and behavioural problems similar to Mr Chau as he gave evidence.  Their observations and opinions are also consistent with the evidence of Mr Chau’s son, whom we found to be a candid and acceptable witness.  We found the diagnosis made by Dr Dinnen to be plausible, thoroughly considered and based on a detailed and sensitively interpreted history, supported by a persuasive application of the diagnostic criteria of PTSD.  On this basis, we prefer the evidence and opinion of Dr Dinnen which we note was largely supported by that of Dr Pickering who considered the diagnosis to be muddied only by Mr Chau’s apparent cognitive deficit and the possibility of an organic cause for that impairment.

16.     In reaching this conclusion we also note the following passage from the decision of the Federal Court in Repatriation Commission v Warren[1]:

“It is DSM-IV as a whole which will inform a clinical diagnosis, upon which a finding will be based.  The Manual itself explains that there is more to a diagnosis than the application of the criteria in a ‘cookbook’ fashion.  A person having symptoms which fall short of meeting the stated criteria may nevertheless be diagnosed as suffering from the condition.  DSM-IV refers to the need to exercise clinical judgment, which I take to include the application of experience.”

[1] [2007] FCA 866

17.     Although Her Honour Justice Kiefel was discussing the DSM-IV in the context of diagnosis of a possibly war-caused condition and the application of a Statement of Principles, we think her comments apply with particular force to the application of DSM-IV in the context of an application for an Invalid Service Pension.

18.     In relation to the assessment of Mr Chau’s PTSD under the GARP, we note the following assessments made, under Chapter 4, by Dr Law, Dr Skinner, Dr Pickering and Dr Dinnen:

Emotional and Behavioural Consequences	Dr Law	Dr Skinner	Dr Pickering	Dr Dinnen
4.1 Subjective distress	15	6	6	15
4.2 Manifest distress	10	6	0	15
4.3 Functional effects	2	2	2	3
4.4 Occupation	8	0	5	8
4.5 Domestic situation	2	0	1	5
4.6 Social interaction	3	0	0	5
4.7 Leisure activities	5	0	1	5
4.8 Current therapy	5	1	2	3

19.     Given the wide divergence in assessments, we considered it appropriate to conduct our own assessment under Chapter 4, on the basis of the evidence of Mr Chau and his son and the histories given, particularly to Dr Dinnen and Dr Pickering.

20.     We find that Mr Chau had frequent symptoms which caused him moderate distress from which he could sometimes not distract himself.  We were particularly mindful of his recollections of the Vietnam War and his insomnia when faced with media reports or Vietnamese associates, his feeling of “paranoia” on hearing a loud noise, his feeling of “depression”, his sense that his wife and children avoid him, his forgetfulness, his nightmares, and the mood swings, irritability and inability to control his upset described by Mr Chau’s son.  On this basis we consider he attracts 6 points under table 4.1.

21.     We find that Mr Chau has obvious distress and his pre-occupation with his symptoms is evident to casual observers.  We based this finding on the distress we observed in Mr Chau when he was questioned about his experiences in the War.  We also note the description given by Dr Dinnen in his report dated 13 October 2004 under the heading of this section in the GARP table, much of which was based on his interview with Mr Chau’s son.  However, we consider that Dr Dinnen over allocated points and, rather than the 15 points allocated by Dr Dinnen, we find that Mr Chau attracts 10 points under table 4.2.

22.     We find that Mr Chau has marked interference with functions in many everyday situations.  We were mindful of Mr Chau’s, and his son’s, evidence of forgetfulness and preoccupation leading to such things as forgetting to turn off the stove and a diminished ability to drive a car, his reaction to news events which lead to an avoidance of media and a disinclination to read.  On this basis, we consider Mr Chau attracts 3 points under table 4.3.

23.     In relation to occupation, we find that Mr Chau cannot work.  We base this finding on the evidence of Mr Chau and his son, and on the opinions of Dr Dinnen, Dr Pickering, Dr Law and, to a lesser extent, Professor J G McLeod, Neurologist.  Mr Chau’s ability to work is discussed in more detail below.  It follows that we find that Mr Chau attracts 8 points under table 4.4.

24.     We find that Mr Chau has frequent discord with family members.  We base this finding on Mr Chau’s evidence of his family’s avoidance of him and on the evidence of Mr Chau’s son that his father is often irritable and uncommunicative.   We therefore find that Mr Chau attracts 2 points under table 4.5.

25.     In relation to social interaction, we accept Mr Chau’s evidence that, since his experiences in the Vietnam War, he has become “a different person” and has “lost interest in social activities”.  We also accept the evidence of Mr Chau’s son that his father has fewer friends than he did previously because of his father’s increased irritability and absentmindedness and that his remaining friends are limited to the people with whom he attends prayer sessions.  On this basis, we find that Mr Chau has had a substantial reduction in social interaction.  It follows that Mr Chau attracts 5 points under table 4.6.

26.     In relation to leisure activities, we accept Mr Chau’s evidence that he no longer goes fishing.  We note that, in answer to the question of what he does with his time on an average day he answered:

“I just go out into the garden, the back yard, walk around and sit there and watch the sky.  I don’t know what to do with my time.” (transcript, p. 14).

27.     When asked whether he has any hobbies, he said:

“Clean up the garden, in the back yard, clean up in the garden but then my children never allow me to do anything in the house … because I keep making a mess around the place so they wouldn’t allow me to do anything in my house.” (transcript, p. 14).

28.     Together with Mr Chau’s and his son’s evidence of his forgetfulness, irritability and loss of friends, we find that he has suffered a loss of interest in most recreational pursuits and attracts 5 points under table 4.7.

29.     In relation to current therapy, we note that Mr Chau has had a care plan developed for him by Dr Pope, has been prescribed an antidepressant medication, and has had a number of attendances on Dr Law.  On this basis, we find that psychiatric treatment, in the form of medication and outpatient therapy, has been used.  It follows that Mr Chau attracts 3 points under table 4.8

30.     We therefore find that Mr Chau has a total of 34 points under Chapter 4 of the GARP. 

31.     In relation to Mr Chau’s physical condition, the only considered evidence before us was the report of Dr M Burns, Occupational Physician.  He concluded that Mr Chau suffers from lumbar spondylosis with a 25% decrease of range of movement in his lumbar spine and pain in his low back.  Dr Burns considered that this attracted 9 points under tables 3.3.1 and 3.6.1 and 2 points under table 3.4.1 in Chapter 3, giving him a total of 11 points for his physical impairment. Combined with the points under Chapter 4 of the GARP this gives Mr Chau a total of 41 points.

32.     We note the Commission’s submission that Dr Burns’ assessment included 2 points for pain and that there is no evidence that this pain has been treated with medication.  We deal with the question of treatment and permanence in detail below, but in any event, even if the points allocated for back pain were to be subtracted from the total, or left out of the equation, Mr Chau would still satisfy the requirement that he have 40 points or more under the GARP.

33.     As to Mr Chau’s cognition, Professor Mcleod, found an impairment in functioning that he assessed as attracting 25 points under Chapter 5 of the GARP.  He considered that Mr Chau did not suffer ongoing effects of his war time head injury, but instead suggested that he may suffer late onset dementia due to other causes. He noted that a CT scan has not been performed and a workup for general causes of dementia would be appropriate.  Given the possible overlapping of some of the symptoms of what may be a neurological condition with some of those of Mr Chau’s PTSD, we have not included Professor McLeod’s assessed 25 points in our calculations.  However, it lends some weight to the gravity of Mr Chau’s impairment and confirms our conclusion that he attracts the required number of points for eligibility for the Invalid Service Pension.

is mr chau unable to work for more than 8 hours per week?

34.     Dr Dinnen and Dr Law consider that Mr Chau, because of his PTSD, is unable to work for more than 8 hours per week.  Dr Pickering reported that Mr Chau could work for no more than 20 hours per week.  Professor McLeod considered Mr Chau’s “memory problems” would not prevent him from doing repetitive factory work and he is capable of unskilled process work “purely from a neurological perspective” but said “he is not emotionally suitable for this type of work now”.  Dr Burns, assessing only Mr Chau’s lumbar spondylosis, considered he could work full time.

35.     Dr Skinner and Dr George, having concluded that Mr Chau suffers from no psychiatric condition, considered he could work full time.

36.     We again prefer the opinion of Dr Dinnen, for the reasons outlined above, and we note that it is supported, to some extent, by the opinions of Dr Pickering and Professor Mcleod.  In particular, Dr Dinnen’s evidence of the broad ranging severity of Mr Chau’s symptoms and the ways in which they limit his functioning in the workplace, his ability to persist, to concentrate and to co-operate with his fellow workers was persuasive.  We note this in combination with Mr Chau’s history given to Dr Pickering that when he was working 10 years ago his productivity was some 20% less than that of his fellows in the workplace.

are mr chau’s impairment and his inability to work permanent?

37.     Dr Dinnen was firmly of the view that Mr Chau’s PTSD is permanent and that, therefore, so is his inability to work for more than 8 hours per week.  Dr Pickering, Dr Law and Professor Mcleod were also of the view that the incapacity found by them is permanent.

38.     The Commission, referring to the decision of the Federal Court in Repatriation Commission v Hill[2]  (that an Invalid Service Pension is analogous to a social security entitlement) and Dragojlovic v Director-General of Social Security[3] (that a disability that can be relieved by treatment that is reasonably available is not permanent) and submitted that, together, these authorities establish that Mr Chau’s incapacity is not permanent because he has not received treatment for his psychiatric impairment or for physical pain.

[2] (2005) 142 FCR 88

[3] (1984) 1 FCR 301

39.     We think the Commission has drawn a long bow with this submission.  We note that in ReHill[4] their Honours mentioned the analogousness of social security entitlements after discussing a submission that urged them to apply principles of workers’ compensation law to consideration of eligibility for an Invalid Service Pension.  Their Honours said that an Invalid Service Pension is “genealogically different” from workers’ compensation and noted that the pension is analogous to a social security entitlement in that “there is no need for any link to be shown between the incapacity that the veteran now suffers and any service that has been rendered”.

[4] (2005) 142 FCR 88

40.     We do not take this passage in Re Hill[5] to mean that express provisions in social security legislation, such as those considered by the Court in McDonald v Director-General of Social Security[6], should be applied in the consideration of eligibility for an Invalid Service Pension under the VEA.

[5] (2005) 142 FCR 88

[6] (1984) 1 FCR 354

41.     In any event, there is scant evidence to establish, first, that there is treatment reasonably available to Mr Chau beyond that which he has already undertaken, and second, that it would relieve his impairments.  We have evidence of what some practitioners would recommend as treatment.  However, unlike, for example, the laminectomy recommended to the Applicant for a payment under the Social Security Act 1947 in Dragojlovic, [7] we do not have detailed evidence of the likelihood of any or all of the treatment variously mentioned relieving Mr Chau’s psychological impairment.  The only exception to that is Dr Dinnen’s evidence that Mr Chau’s condition is unlikely to improve with ongoing treatment.  Dr Skinner, of course, found no psychiatric condition to be treated.

[7] (1984) 1 FCR 301

42.     For the reasons stated above we prefer the opinion of Dr Dinnen.  We are also mindful that his opinion as to the permanence of Mr Chau’s psychiatric impairment is supported by Dr Law, and although they assess the aetiology or severity of the impairment differently, by Dr Pickering and Professor Mcleod.

43.     On this basis we conclude that Mr Chau’s impairment and his inability to work are permanent.

conclusion

44.     For the reasons set out above, we are satisfied that Mr Chau has 40 or more points under the GARP, that, solely because of his impairments, he is unable to work for periods up to more than 8 hours per week, and that his impairment and his inability to work are permanent.  It follows that Mr Chau was eligible for an Invalid Service Pension.  We use the past tense here because we understand that Mr Chau, since 5 January 2008, has been in receipt of an Age Service Pension with effect from 9 September 2007.

decision

45.      The decision under review is set aside and instead the Tribunal decides that Mr Chau was eligible to receive an Invalid Service Pension.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member and Dr I Alexander, Member

Signed:         .............................SGD...................................................
  Associate: Felicia Daniele

Date/s of Hearing   18 July 2005,  1 & 8 September 2005, 20 December 2005, 29 March 2007, 20 and 21 February 2008.
Date of Decision   6 June 2008
Counsel for the Applicant         Mr N Dawson
Solicitor for the Applicant          Legal Aid
Counsel for the Respondent     Ms J McDonnell
Solicitor for the Respondent     Repatriation Commission