Nguyen and Repatriation Commission

[2005] AATA 726

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 726

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/201

VETERANS’ APPEALS DIVISION		)
Re		MINH HOANG NGUYEN

Applicant

And REPATRIATION COMMISION

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member
Dr Maxwell  Thorpe, Member

Date29 July 2005

PlaceSydney

Decision

The Tribunal sets aside the decision under review and in substitution decides that:

·     Mr Nguyen is permanently incapacitated for work pursuant to section 37AA of the Veterans Entitlements Act (the Act) and the Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999 (the 1999 Determination).

· Mr Nguyen is eligible for an Invalidity Service Pension with effect on and from the date of his application, 26 June 2002, pursuant to section 37 of the Act.

·     Mr Nguyen has an impairment that results in a combined impairment rating of 40 or more pursuant to subclause 5 (2) of the 1999 Determination.

  ……………………….     
  Ms R Hunt
  Presiding Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – Invalidity Service Pension – Post Traumatic Stress Disorder – Vertical Disc Protrusion – Cervical spondolysis -  GARP Combined impairment rating over 40 points – Unable to work 8 hours a week solely because of the impairment - Permanent Incapacity for Work – Decision set aside

LEGISLATION

Veterans’ Entitlements Act 1986 ss 7A, 37, 37AA, 37E, 119,120

Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999 cl 5

CASE AUTHORITIES

Repatriation Commission v Hill [2005] FCAFC 7

Wright v Repatriation Commission (2005) 213 ALR 536

Re Tran and Repatriation Commission

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

Repatriation Commission v Haskard (2002) 71 ALD 29

Repatriation Commission v Smith (1987) 15 FCR 327

Briginshaw v Briginshaw (1938) 60 CLR 336

National Mutual Life Association of Australasia Ltd v Campbell [2000] FCA 852

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

REASONS FOR DECISION

29 July 2005 Robin Hunt, Senior Member
Dr Maxwell Thorpe , Member

summary

1.      The Applicant, Mr Minh Hoang Nguyen, was refused an invalidity service pension (ISP) on 2 December 2002 on the basis that he was “not permanently incapacitated for work” and “under pension age”. The Tribunal has reviewed the decision and has decided that he is suffering from Post Traumatic Stress Disorder as well as Vertical Disc Protrusion and Cervical Spondolysis. The Tribunal finds that this is his sole reason for not being able to work 8 hours per week and that he is permanently incapacitated and therefore is eligible to receive an ISP.

issue

2. The issue for the Tribunal to determine is whether Mr Nguyen is entitled to the pension he seeks as at the date of the reviewable decision made on 2 December 2002. Eligibility is determined according to the provisions of sections 37 and 37AA of the Veterans’ Entitlements Act 1986 (the Act) and the relevant disallowable instrument which is section 5 (1) and (2) of the Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999. In order for Mr Nguyen to qualify for the ISP, Mr Nguyen must:

·     have an impairment that results in a combined impairment rating of 40 or more;

·     be unable to do work for periods adding up to more than 8 hours per week; solely because of the impairment, and

·      show his impairment is permanent.

background

3.      It is common ground that Mr Nguyen served in the South Vietnamese Army and is eligible to apply for an ISP in respect of his service. The Respondent’s decision refers to his being below pension age (T33,95) but the notification to Mr Nguyen does not mention this as a disqualifying ground (T34,96). According to materials before the Tribunal, Mr Nguyen was born in Vietnam on 6 December 1949 and was aged 55 at the date of the Tribunal’s review. Mr Nguyen became an Australian citizen on 1 June 1992. He claims that he suffers from a number of permanent disabilities. His main disabilities described for the review are vertebral disc protrusion, cervical spondylosis and a psychiatric condition. Mr Nguyen further claims that he is prevented from working more than 8 hours per week solely because of his disabilities. He has presented medical evidence that his impairment is an injury or disease for the Guide to the Assessment of Rates of Veterans’ Pensions (GARP), resulting in a combined impairment rating of 40 or more under Table 18.1 in that Guide. The Respondent has presented conflicting evidence as to Mr Nguyen’s degree of impairment.

4.      Mr Nguyen lodged his application for review by the Tribunal after the making of an unfavourable determination by the Repatriation Commission and the affirmation of that determination on 30 November 2003. Mr Nguyen submitted that he suffered from PTSD and lower back pain when claiming his entitlement to the ISP.

evidence

5.      Mr Nguyen gave oral evidence at the Tribunal hearing held on 13 July 2005. He told the Tribunal that during his service with the South Vietnamese army he was captured by the communists. He recounted his capture and subsequent escape. He told the Tribunal that he was captured with two companions and put to trial by the Viet Cong (the VC) before a number of people. The captives were tied up with ropes made from banana leaves with their hands behind their backs. The people decided that Mr Nguyen and the other captives should be killed. He saw the other captives killed by a blow to the head. It was his turn to be killed when there was a sudden artillery attack by the southern forces. The VC turned out the lights and the people scattered. Mr Nguyen was able to run away to a river where he hid under the water and managed to untie his ropes and be washed about 2 kilometres downstream. He described how he was able to slip the rope from behind his back and under his legs so that it was in front of his body. He then chewed through the rope and was free. After being washed downstream, he came to a southern army camp.

6.      Mr Nguyen said he came to Australia as a refugee after fleeing by boat. He lived in a refugee camp in Indonesia, then relocated to Singapore where he worked for one week before travelling by plane to Australia. Mr Nguyen previously had various jobs in Australia packing in factories, operating a printing machine and working as a delivery driver for a clothing factory. He gave further evidence that at one point he had operated a clothing and delivery business in his own home before he went back to working in a factory. In 1995, he injured his back at work when he was a process and assembly worker in a factory. He had some time off work and eventually received a compensation payout of $100,000. Mr Nguyen said he had thought about using the money for a laundry business but his wife had not wanted to do this. He said that after he returned to work in 1996 he was sacked. He was working for an employer again in 2000 and obtained his last job in 2001. This was light work in a factory. He did this for about 6 months and then he had a car accident in 2002. After the accident, he had problems concentrating and in remembering things. He said he was called into the office several times because he made mistakes. He quit this job because he could not do the job properly. He had sought compensation but his claim was rejected because he already had a back injury. He was still seeing a solicitor about pursuing a compensation claim.

7.      The Tribunal also heard Mr Nguyen’s evidence about his poor health, sleeping problems and bad dreams. He showed the Tribunal various medications prescribed by his treating doctors. He described numbness he felt in his legs from the back injury. He said he had been taken to hospital by ambulance about a week ago because his back pain had been so severe. He was admitted on a Sunday and discharged the following Friday. Mr Nguyen said that he and his wife are separated although they live in the same house. He also does not get on well with his children and said he is cranky with them and that they prefer his wife. He gave evidence that he rises at about 7 or 8 in the morning and waits for a friend to have coffee with. He spends the mornings in a coffee shop. He sometimes glances at a Vietnamese newspaper for five or ten minutes in the coffee shop or at home. He said he never read the paper for more than 30 minutes. Mr Nguyen told the Tribunal the coffee shop was better than staying at home on his own.

8.      Mr Nguyen said he goes out several nights a week with friends and has a few drinks at a hotel or at the RSL. His friends sometimes buy him drinks as he does not have much money. He also spends some evenings with his brother and his brother’s wife. Mr Nguyen gave further evidence that he does not go to bed until around 1am as he cannot sleep if he retires earlier. Mr Nguyen described how most evenings he sits in a park near his home until 1am or sometimes later. He said that, at first, the police had been suspicious of him and asked him questions. They  then found that he lived with his family in a house nearby. He said the police know him now and just say hello or take him home if he is drunk.  Mr Nguyen said he just sits in the park until he goes to bed.

9.      Mr Nguyen gave evidence that he often has nightmares. He dreams that he is being chased by the VC or by helicopters. The worst nightmare is when he relives his capture by the VC and the killing of the other captives. Sometimes he is leaving by boat, sometimes there are police, sometimes the VC. He started to dream about his capture and escape from the VC when he was in the refugee camp but he does not dream about it often. He mostly dreams about battles which he fought with his friends. Mr Nguyen told the Tribunal that the nightmares were less frequent when he had a job but they are worse now that he no longer works. Mr Nguyen said he used to see Dr Law about his psychiatric condition but now preferred to see Dr Tran Dong, who speaks Vietnamese.

10.     When Mr Nguyen was asked to comment on an observation by one of the medical practitioners who had examined him, Dr Mark Burns, that he had seen him Nguyen move his neck more than he claimed he was able, Mr Nguyen disagreed. He gave evidence that he had two accidents reversing his car because he could not turn his neck properly. He claimed to have reversed into a pole and into another car and that the insurer, NRMA, would have a record of these incidents.

The Applicant’s Medical evidence

Dr S. Law

11.     Dr Law, consultant psychiatrist, according to the records before the Tribunal, commenced seeing Mr Nguyen on 15 May 2001. The Respondent noted in its Statement of Facts and Contentions for the Tribunal proceedings that Dr Law wrote a report on 21 May 2001 in which he concluded that Mr Nguyen:

“has suffered from post traumatic stress disorder causally related to his past adverse experiences in war service and re-education time in Vietnam …”

Dr Law advised his patient and prescribed an anti-depressant.

12.     The Respondent further noted that that Dr Law wrote a total of five reports. These are similar and are all before the Tribunal. In the second report, dated 18 June 2001, Dr Law wrote that he regarded Mr Nguyen permanently incapacitated for work because of his PTSD and he assessed a GARP score of 43. The GARP form was not lodged with the Respondent but a copy is before the Tribunal. On 17 June 2002, Dr Law reiterated his opinion that Mr Nguyen was permanently incapacitated for work and he again assessed a GARP score of 43. In his fourth report, dated 6 May 2003, Dr Law again wrote that Mr Nguyen:

“has been unable to work or be trained, owing to the persistent effects of his various PTSD and pain symptoms”.

In a fifth report in Dr Law’s treating notes, dated 9 December 2003, Dr Law reaches the same conclusion about Mr Nguyen’s condition.

13.     Dr Law took a brief history from Mr Nguyen that is set out in his report of 9 December 2003. He wrote that Mr Nguyen rendered military service from 1971 to 1975 and was:

“exposed to many life-risky combat situations and loud explosions. He has sustained superficial shrapnel injuries to the right hand and right side of chest, in active combat”.

Further, he wrote:

“In 1975 he was sent to a re-education camp by the Vietcongs, and he was then mentally and physically tortured by the Vietcongs”.

14.     Also on file are referral letters and medical reports from practitioners who have seen Mr Nguyen. These include Dr Ngo, the GP who has been treating Mr Nguyen in recent years and a radiologist’s report by Dr Doull. Dr Doull’s report, dated 21 August 2002, stated:

“ a scoliosis to the right. Traction spur formation in the lower cervical spine….”

He further reported:

“Large bony excrescences are present at multiple levels……..There is quite marked flattening of the spinal canal.”

Dr Wolfenden, who saw Mr Nguyen after he suffered his back injury at work, wrote a report on 3 August 1999 concluding that:  

“The prognosis however is not good and I am quite sure that he will never return to any form of heavy work.”

He noted permanent impairment of Mr Nguyen’s back to approximately 30% “of a most extreme case”, 10% loss of the efficient use of his legs and 80% loss of the use of his sexual organs.

Dr M. Ng and Dr Q. Ngo

15.     The Respondent noted in its Statement of Facts and Contentions that Dr Ng, on 14 November 1996, indicated to the treating GP, Dr Ngo, that Mr Nguyen had complained to him of not sleeping well at night. Mr Nguyen’s prescription was changed. Dr Ngo stated on 3 February 2003 that Mr Nguyen “is still incapacitated for work” (T44, 110). The context of this comment shows Dr Ngo’s opinion was on the strength of his back injury alone.

Dr A. Dinnen

16.     Dr Dinnen, consultant psychiatrist, examined Mr Nguyen on two occasions and wrote a report on 6 November 2002. The first interview took place with the assistance of an interpreter and the second with Mr Nguyen on his own. Dr Dinnen wrote that Mr Nguyen’s English was adequate for the purpose and he took a history from Mr Nguyen. Mr Nguyen told Dr Dinnen that he suffered headaches, didn’t sleep and had a sore back. He told Dr Dinnen that he had dreams for a short time when he escaped in Vietnam.  Dr Dinnen recorded Mr Nguyen saying:

“when I sleep I think a lot of fighting – when war in Vietnam, fighting Communists”.

Dr Dinnen also recorded Mr Nguyen’s early life in Vietnam and events that Mr Nguyen described during his involvement with the war in Vietnam and his subsequent history in Australia. He noted Mr Nguyen was beaten by the Communists as well as being given hard physical work. In addition this, Dr Dinnen noted that Mr Nguyen witnessed the death of two of his army colleagues before the people’s court and other distressing experiences.

17.     Dr Dinnen diagnosed chronic PTSD and major depression and gave Mr Nguyen a GARP rating of 48. His report was detailed and contained a careful analysis of the information supplied by Mr Nguyen by reference to the topics or factors in Table 4 leading to his assessment of his findings as to the appropriate GARP score. He then reviewed the documentation brought to his attention for the report including reports of Dr Law, a number of neurosurgeons’ reports, that of a medical adviser with the HSA, Dr George and Dr Zwartzka in November 2002. Dr Dinnen also considered that Mr Nguyen cannot work as much as 8 hours per week and that, although he was not receiving therapeutic doses of anti-psychotic and anti-depressant medication, he was unlikely to respond to this treatment.

Dr D. Tran

18.     Dr Tran gave oral evidence to the Tribunal via telephone. Dr Tran confirmed that he had been treating Mr Nguyen for his condition of PTSD already diagnosed by Dr Law. If he had not already been diagnosed, Dr Tran explained that he would have undertaken a more comprehensive evaluation. He said he first saw Mr Nguyen two or three years ago. Dr Tran was also treating Mr Nguyen’s wife and considered her as his primary patient. Dr Tran understood that Mr Nguyen had injured himself and had chronic back pain as well as the depressive mental condition for which he was already taking antidepressants when Dr Tran first saw him. Dr Tran continued prescribing antidepressant medication. He had also prescribed anti-psychotic drugs as these could be helpful over a limited period.

19.     In Dr Tran’s opinion, Mr Nguyen was very unlikely to be able to perform paid work in the future because of his depressive condition and physical injury. Dr Tran said medication appeared to relieve Mr Nguyen’s symptoms and anxiety but did not represent a significant recovery of his overall condition. Some of the symptoms of the anxiety condition that Mr Nguyen exhibited were irritability, angry outbursts, poor concentration and forgetfulness. His condition had stabilised but he suffered from lack of sleep. Dr Tran was aware of Mr Nguyen’s symptoms not only from seeing Mr Nguyen but also because he had the benefit of dealing with Mr Nguyen’s wife as well. Dr Tran was not aware of Mr Nguyen’s relationship with his brother and friends. He also was not aware that he and his wife had separated but did not find this surprising and said that Mr Nguyen and his wife had not shared intimacy for some time. Dr Tran gave evidence about the medications he had prescribed and others he had trialled for Mr Nguyen’s nightmares and distress. He doubted that Mr Nguyen could work because of his psychiatric condition with or without his back problems. This was partly because his concentration was so limited and lack of motivation was part of his condition. When pressed about whether Mr Nguyen might be capable of working 8 to 20 hours per week, Dr Tran said this was highly unlikely and that he was not fit for paid work and, at best, might be able to do a few hours of work per week, “maybe”. In Dr Tran’s opinion, Mr Nguyen would not survive in a competitive environment. Dr Tran did not provide a GARP rating for Mr Nguyen.

The Respondent’s Medical Evidence

Dr G. George

20.     Dr George, psychiatrist, examined Mr Nguyen for the Respondent and wrote a report on 6 November 2002. He found some elements of PTSD but not an ongoing diagnosis. He believed Mr Nguyen’s pain from his injury would affect his day to day life and mood state. He thought this explained his recurrent nightmares and restless sleeping. He could see no reason why Mr Nguyen could not perform part-time work.

Dr N. Zwatrzka

21.     Dr Zwatrzka, a senior medical adviser, completed a minute for the Respondent on 26 November 2003, assessing Mr Nguyen for ISP, finding that he did not satisfy the criteria. Dr Zwatrzka made a GARP assessment of 35 points (T52,119), mainly attributable to Mr Nguyen’s back problems. She attributed only 9 points to Mr Nguyen’s emotional and behavioural impairment. Dr Zwatrzka noted that the psychological impairment had previously been calculated at 9 points. Although she did not refer to any one previous assessment, she had made an assessment of 9 points on 29 November 2002 (T32).

Dr Y. Skinner

22.     Dr Skinner gave oral evidence and furnished a written report of her examination of Mr Nguyen on 8 February 2005. Dr Skinner’s report of 7 March 2005 gave a GARP rating of 11 points. However, Dr Skinner told the Tribunal that she would increase the score had she known that Mr Nguyen and his wife were separated, having based her opinion on her understanding that Mr Nguyen still had social interaction with his wife. Dr Skinner’s assessment dealt with the accepted condition of “symptoms of post traumatic disorder” only and not physical impairment.

23.     Dr Skinner said she was under the impression that Mr Nguyen had improved and she took a history of infrequent nightmares and of Mr Nguyen’s drinking only 2 or 3 nights a week. However, Mr Nguyen gave evidence of a more frequent pattern of drinking which was also recorded by Dr Dinnen. Dr Skinner also recorded that Mr Nguyen was “quite sober” when picked up by police in the park near his home at night whereas he had told the Tribunal that they took him home if he was drunk. Dr Skinner was not familiar with one of Mr Nguyen’s medications according to its brand name and commented that he should not have taken all the medications recorded by Dr Dinnen at once. She had recorded all the medications Mr Nguyen was taking when he saw her and thought he might have been undergoing trialling of other medications when he saw Dr Dinnen.

24.     Dr Skinner explained her low scores attributed to Mr Nguyen’s subjective and manifest mental distress was the result of comparison with people in hospital who could not look after themselves. Dr Skinner considered that Mr Nguyen‘s mental condition would not prevent part-time work but noted that his orthopaedic condition might be an additional factor.

Dr M. Burns

25.     Dr Burns is an occupational physician. Dr Burns examined Mr Nguyen and wrote a report dated 28 June 2004. Dr Burns agreed with Dr George that Mr Nguyen’s symptoms were a reactive depression from his accident and gave Mr Nguyen a GARP score of 9 for depression. He assessed a total of 34 points for Mr Nguyen’s spinal impairment. Dr Burns gave a combined impairment of 36 points, which is rounded down to 35 points. Dr Burns further believed that Mr Nguyen was capable of part time light duties for at least 8 hours per week. He thought that non-physical problems such as poor English might make it difficult for Mr Nguyen to find work rather than his health.

analysis and findings

26. Sections 37 and 37AA of the Act are the main provisions determining eligibility for an ISP. Section 37(1) provides that a person is eligible for an ISP if the person is:

“(a) a veteran; and

(b) has rendered qualifying service; and

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

Section 37AA states that the Commission must specify the circumstances in which persons are permanently incapacitated. The 1999 Determination specifies these circumstances. In addition, s37E of the Act provides that a veteran is not able to claim an ISP if he has turned 65 or reached pension age. There is no dispute that Mr Nguyen satisfies s37(1)(a) and (b) or s37E as at the time of the Tribunal hearing, Mr Nguyen was 55 years of age.

27. We have considered the various reports and evidence above and analysed the results below in the context of the requirements of s37 and s37AA of the Act. Firstly, we have dealt with the appropriate GARP rating.

·     Dr Law, who treated Mr Nguyen over a period of years, has consistently assessed Mr Nguyen as attracting 43 points on the GARP scale. This was on the basis of his psychiatric problems alone.

·     Dr Dinnen, who saw Mr Nguyen twice, and more recently than Dr Law, assessed Mr Nguyen as attracting 48 points on the GARP scale. This was on the basis of his psychiatric problems alone.

·     Dr Tran has been treating Mr Nguyen for the last 2 or 3 years but did not make a GARP assessment. His evidence was to the effect that Mr Nguyen was severely disabled by his psychiatric condition. Dr Tran continued to prescribe similar medication to that previously prescribed by Dr Law in order to stabilise Mr Nguyen’s problems. He believed it was highly unlikely that Mr Nguyen could perform any paid work because of his mental condition and did not find cause to question Dr Law’s previous diagnosis.

·     The Respondent’s doctors, Dr Skinner and Dr George, assessed Mr Nguyen’s mental condition as relatively minor and improved. Dr Skinner found a GARP score of 11 based on the psychiatric symptoms and did not assess his physical injury. Dr Skinner only saw Mr Nguyen once and she was not a treating doctor.

·     Dr Zwatrzka and Dr Burns both gave a combined impairment rating of 35 points. They both gave a high rating for his spinal condition and low ratings of 9 points and 11 points respectively for his psychiatric condition.

28.     The Tribunal is required to make its findings to its reasonable satisfaction under section 120(4) of the Act. On balance, the Tribunal prefers the assessment of Mr Nguyen’s treating doctors, Law and Tran, supported by the assessment of Dr Dinnen. Although Dr Tran made no GARP assessment, he strongly endorsed the diagnosis and treatment of Dr Law and continued with similar medication, commenting that Mr Nguyen’s condition would not improve significantly. The Tribunal did not find the report and evidence of Dr Skinner convincing in view of Mr Nguyen’s oral evidence and the opinions of his treating doctors. In addition, she indicated she would adjust her assessment upwards when she learned that Mr Nguyen and his wife had separated. Therefore, the Tribunal finds that Mr Nguyen’s psychiatric condition is sufficient to base a GARP score of 40 or more. In addition, Mr Nguyen has significant back problems which enabled Dr Zwatrzka to reach a total assessment of 35 points, even though she assessed the psychiatric elements at merely 9 points. Similarly, Dr Burns reached a total assessment of 35 points even though he assessed the psychiatric elements at merely 9 points. It follows that Mr Nguyen meets the requirement of having an impairment that results in a combined impairment rating of 40 or more, pursuant to subclause 5 (2)(a) of the 1999 Determination.

29.     In considering whether Mr Nguyen is permanently incapacitated for work, the Tribunal again preferred the opinions of Mr Nguyen’s treating doctors. This approach was advocated by the Full Court of the Federal Court in National Mutual Life Association of Australasia Ltd v Campbell [2000] FCA 852 and has been followed by the Tribunal many times since. Dr Law has repeatedly assessed Mr Nguyen as incapable of working. Dr Dinnen and Dr Tran share this opinion in a 2004 report and in oral evidence respectively. Dr Ngo (T44,110) also found that Mt Nguyen was incapacitated for work. So, although Drs Skinner and Burns did not agree with this assessment, the Tribunal, on balance, is satisfied that Mr Nguyen cannot work, even for 8 hours per week.

30.      As the Respondent’s counsel pointed out, consideration of “work” under the Veterans’ Affairs legislative scheme requires the decision maker to focus on the person’s qualifications, background and skills. See Repatriation Commission v Hill [2005] FCAFC 7. Although Mr Nguyen has other drawbacks such as his age and poor English, this was not taken into account by the Tribunal in making its findings. The Tribunal is satisfied that the reason Mr Nguyen cannot work is that stated by his treating doctors. His psychiatric problems would prevent him from coping with paid work at all, let alone for 8 or more hours per week. In addition, he has severe back problems that restrict him further. Accordingly, we are satisfied that Mr Nguyen is unable to perform work due to his mental and physical impairments or mental impairment alone and that this is the sole reason why he cannot work. In other words, he meets the so-called “solely” test set out in subclause 5(2)(b).

31.      The permanency of the impairment is another necessary factor for the ISP. We are satisfied as well that Mr Nguyen’s disabling condition is permanent. Dr Zwatrzka found on 26 November 2003 that:   

“the conditions may be deemed permanent”.

Dr Law considered the impairment to Mr Nguyen permanent. Dr Tran gave oral evidence that he expected no significant improvement in Mr Nguyen. Dr Dinnen classed Mr Nguyen’s psychiatric condition as chronic and observed that its onset occurred during the Vietnam war. He further observed that:

“the depth of his disability would equate with or if not exceed that of most TPI veterans I have examined over the years”.

32.      Accordingly, the Tribunal is satisfied that Mr Nguyen is both permanently unable to do work for the purposes of cl. 5(2)(b) and that he suffers permanent impairments for the purposes of cl. 5(2)(c).This finding accords with McDonald v Director- General of Social Security (1984) 1 FCR 354 and the need to demonstrate the incapacity in the context that it is more likely than not to persist for the foreseeable future. Mr Nguyen’s treating doctors see it as highly unlikely that he will ever work (Dr Law) or give an unrestricted opinion that the impairment is permanent.

33.      Although Mr Nguyen has not had surgery for his back, this has no effect on his psychiatric impairment. In any case, Dr Zwatrzka accepted that the back condition was permanent. It follows that the case of Dragojlovic v Director-General of Social Security (1984) 1 FCR 301 has no application. There is no evidence that any treatment is available which would do more than stabilise Mr Nguyen’s mental impairment and the Tribunal has heard that he takes the medications he is prescribed. Therefore, the Tribunal has found that Mr Nguyen qualifies for ISP.

DECISION

34.      The Tribunal sets aside the decision under review and in substitution decides that:

·Mr Nguyen is permanently incapacitated for work pursuant to section 37AA of the Veterans Entitlements Act (the Act) and the Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999 (the 1999 Determination).

·Mr Nguyen is eligible for an Invalidity Service Pension with effect on and from the date of his application, 26 June 2002, pursuant to section 37 of the Act.

·Mr Nguyen has an impairment that results in a combined impairment rating of 40 or more pursuant to subclause 5 (2) of the 1999 Determination.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt

Signed:         .....................................................................................
Zoe McDonald
Associate

Date of Hearing: 13 July 2005 
Date of Decision: 29 July 2005
Counsel for the Applicant: Mr T. Latimore
Solicitor for the Applicant: Vietnam Veterans’ Association
Counsel for the Respondent: Ms R. Henderson 
Solicitor for the Respondent: Department of Veterans’ Affairs