Raymond De La Rue and Repatriation Commission
[2013] AATA 464
[2013] AATA 464
Division VETERANS' APPEALS DIVISION File Number
2012/1357
Re
Raymond De La Rue
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 5 July 2013 Place Melbourne The Tribunal affirms the decision of the Veterans’ Review Board dated 20 March 2012.
.......[sgd Egon Fice].................................................................
Egon Fice, Senior Member
VETERANS’ AFFAIRS – Pension – Sleep Apnoea – Obesity – Clinical onset – Diagnosis – Connection with operational service – Reasonable hypothesis – War-caused – Alcohol – Claimed stressors
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Veterans' Entitlements Act 1986 (Cth) ss 5D, 7, 9, 13, 120, 196B
Cases
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Government Insurance Office of NSW v R J Green and Lloyd Pty Ltd (1966) 114 CLR 437
Law v Repatriation Commission (1980) 29 ALR 64
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Cornelius (2002) 69 ALD 250
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Smith (1997) 15 FCR 327
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Walsh v Rother District Council [1978] 1 ALL ER 510
Secondary Materials
Chambers 21st Century Dictionary (1999, reprinted 2004)
Dorland’s Illustrated Medical Dictionary (27th ed, 1988)
Repatriation Medical Authority, Statement about the causes of “being obese” (16 August 1996)
Statement of Principles, Alcohol Dependence and Alcohol Abuse (Instrument No. 1 of 2009)
Statement of Principles, Morbid Obesity (Instrument No. 31 of 2003)
Statement of Principles, Sleep Apnoea (Instrument No. 13 of 2005)
REASONS FOR DECISION
Egon Fice, Senior Member
5 July 2013
Mr Raymond De La Rue was a National Serviceman who served in the Australian Army from 9 July 1969 until his discharge on 8 July 1971. He had operational service in South Vietnam between 23 April 1970 and 21 April 1971 as a transport driver with 85 transport platoon.
Prior to his most recent application for the disability pension, the Repatriation Commission accepted Mr De La Rue's claims of Post-Traumatic Stress Disorder (PTSD), malignant neoplasm of the colon, alcohol abuse disorder and erectile dysfunction.
On 12 April 2011 Mr De La Rue lodged a claim in respect of type II diabetes mellitus, sleep apnoea, obesity and hypertension. On 23 June 2011 the Department of Veterans’ Affairs notified Mr De La Rue that his claim for hypertension had been accepted and was to take effect from 12 January 2011. It also determined that his claim for sleep apnoea and diabetes mellitus were not related to his service and that no medical condition was present to answer his claim for obesity.
Mr De La Rue applied to the Veterans' Review Board (VRB) seeking review of the decision made on 23 June 2011. On 20 March 2012 the VRB determined that his claimed diabetes mellitus was war caused but rejected his claims regarding sleep apnoea and obesity. Mr De La Rue lodged an application with the Tribunal on 5 April 2012 seeking review of the VRB decision.
ELIGIBILITY FOR A PENSION
Section 13 of the Veterans' Entitlements Act 1986 (the VE Act) sets out the eligibility criteria for a pension. Insofar as it is relevant to Mr De La Rue's case, it provides:
(1)Where:
(a)the death of a veteran was war-caused;
(b)a veteran is incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the veteran – pensions by way of compensation to the dependants of the veteran; or
(d)in the case of the incapacity of the veteran – pension by way of compensation to the veteran;
in accordance with this Act.
The expressions disease and injury are defined in s. 5D of the VE Act in the following way:
disease means:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c)the aggravation of such an ailment, disorder, defect or morbid condition; or
(d)a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a)a disease; or
(b)the aggravation of a physical or mental injury.
Whether an injury or a disease is war-caused is established by s. 9 of the VE Act which provides:
(1)Subject to this section and section 9A, 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-cause disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happen while the veteran was rendering operational service;
(b)the injury suffered, or the disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…
but not otherwise.
(2)For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service:
(a)… or
(b)if the incapacity was due to a disease – the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-cause disease contracted by the veteran.
Section 7 of the VE Act defines the meaning of eligible war service in the following way:
(1)Subject to subsection (2), for the purposes of this Act:
(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and…
DIAGNOSIS AND CLINICAL ONSET
The process of determining whether a disease or injury is war-caused involves an antecedent decision about the disease or injury from which the veteran claims he or she suffers. In making that decision the standard of proof is that which is set out in s. 120(4) of the VE Act. It provides:
(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 pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
The Full Court of the Federal Court (Beaumont J, with whom Northrop and Spender JJ agreed) in Repatriation Commission v Smith (1997) 15 FCR 327 said, at 335:
Even if the Tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce a standard of proof required in civil litigation.
That means I am required to decide the question regarding diagnosis and clinical onset of Mr De La Rue's claimed conditions on the balance of probabilities.
The meaning of the expression clinical onset is not defined in the VE Act. The Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, referred to the evidence of two medical professionals, Professor Pitt and Dr King, regarding the meaning of the expression clinical onset. Professor Pitt said, at [20]:
Its general use in medicine is to indicate the ability to diagnose an abnormality using basic clinical tools which mean tools that are readily available to the medical practitioner. This would for instance include a history and examination, an electrocardiogram and also straightforward investigations such as a chest x-ray and even including more high technological procedures such as coronary angiography, CT scanning or magnetic resonance imaging.
Dr King said that the use of clinical together with onset implies something that a Doctor can identify as a start of signs or symptoms of the disease process. He explained, at [22]:
Clinical onset I think is a medical concept of when a doctor or a patient becomes aware that they have a problem so the clinical onset, as I have said here, may be the symptoms or it may be that we have found that the patient has an abnormality on a cardiograph. I think perhaps a good example is the patient who is perfectly well and comes in and you find that they have high blood pressure, even though they have got no symptoms of it, the clinical onset of their high blood pressure is when the doctor discovers it, although they may have had it for years and years and years before.
The Tribunal summed up the evidence and said, at [23]:
On that evidence we consider that there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.
The meaning of the expression clinical onset as stated by the Tribunal in Robertson’s case appears to have been accepted by Branson J in Repatriation Commission v Cornelius (2002) 69 ALD 250. Weinberg J also referred to it in Repatriation Commission v Gosewinckel (1999) 59 ALD 690.
As I understood Ms F Ryan of counsel, who appeared on behalf of Mr De La Rue, although the claimed conditions appear to be sleep apnoea and obesity, the claim regarding obesity was not to be regarded as a claim in its own right but rather it was a contributing factor to his sleep apnoea. The reason for that is reasonably clear because the Repatriation Medical Authority (RMA) has declared that it did not propose to make a Statement of Principles (SoP) concerning obesity. I had in evidence amongst the documents lodged with the Tribunal pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) a statement issued by the RMA regarding obesity. That statement, which is dated 16 August 1996, states:
The Repatriation Medical Authority was not able to determine a Statement of Principles in respect of obesity as it was the view that "obesity" is not a "disease" or "injury" as defined in subsection 5D(1) of the Veteran is Entitlements Act 1986. However "being obese" is accepted as a causal factor in a number of diseases.
The RMA statement regarding obesity appears to be a declaration made in accordance with s. 196B(6) of the VE Act which provides:
(6) If, after carrying out the investigation, the Authority is of the view:
(a)that there is no sound medical-scientific evidence on which it can rely to determine a Statement of Principles under subsection (2) or (3) in respect of that kind of injury, disease or death; or
(b)that the sound medical-scientific evidence on which it can rely is insufficient to allow it to do so;
the Authority must make a declaration in writing:
(c)stating that it does not propose to make a Statement of Principals; and
(d)giving the reasons for its decision.
The consequence of having made this declaration goes to the reasonableness or otherwise of the hypothesis advanced by Mr De La Rue. That, in turn, is about whether Mr De La Rue's obesity can be linked to his operational service. I deal with that presently.
The RMA has made a SoP concerning Morbid Obesity (Instrument No. 31 of 2003). However, I did not understand that to be the claimed condition. Although Mr De La Rue, in his claim lodged on 12 April 2011 described the disability as obesity, Dr R B Reid, who completed the medical entries on the claim form, noted his weight at that time was 93 kg and his height was 172 cm. The Body Mass Index (BMI) is calculated by dividing a person's weight in kilograms by that person is height in metres squared. That results in a BMI of 31.44 for Mr De La Rue at that time. For the purposes of the SoP concerning morbid obesity, that expression is taken to mean an excessive accumulation of fat in the body resulting in a BMI of at least 40; or a BMI of at least 35 together with a requirement for ongoing medically prescribed drug therapy for weight reduction or surgical intervention for weight reduction. There was no evidence before me which would support a diagnosis of morbid obesity.
The SoP dealing with Sleep Apnoea (Instrument No. 13 of 2005) which came into effect on 13 April 2005 describes sleep apnoea in the following way:
2. (b) For the purposes of this Statement of Principles, "sleep apnoea" means sleep disordered breathing characterised by periods of cessation or reduction in airflow at the nose and mouth, leading to arousals from sleep (disrupted sleep architecture), together with significant clinical consequences such as excessive daytime sleepiness, impaired memory, difficulty concentrating, morning headache, pulmonary hypertension, right heart failure or respiratory failure.
Mr De La Rue appears to have been diagnosed with sleep apnoea following a diagnostic sleep study conducted on 22 March 2010. In a medical report prepared by Dr Reid on
21 May 2011 he noted that the clinical onset of sleep apnoea was in about 1995. The problem with Dr Reid's opinion regarding the clinical onset of sleep apnoea is that he provided no reasons why he found the clinical onset was in 1995 and Mr De La Rue, in his statement made on 4 April 2012 simply said: I understand that Dr Reid has written a report indicating that the onset of the sleep apnoea occurred in 1995. I did not seek treatment from Dr Reid until 2007 and I believe that his comments that the onset of the sleep apnoea was in 1995 is simply inaccurate. The only evidence before me regarding the clinical onset of Mr De La Rue's sleep apnoea was the sleep study report done on
22 March 2010. Accordingly, I find, on the balance of probabilities, that Mr De La Rue has sleep apnoea, the clinical onset of that condition being March 2010.
CONNECTION WITH OPERATIONAL SERVICE
As the Full Court of the Federal Court (Beaumont, Hill and O'Connor JJ) explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, the process of making the connection between the disease or injury and the service of the veteran involves four steps. They are:
(a)consider all the material and determine whether it points to a hypothesis connecting the disease, injury or death with the circumstances of the particular service rendered;
(b)if the material raises a hypothesis, ascertain whether there is in force a SoP concerning the disease, injury or death;
(c)if there is a SoP in force, form an opinion whether the hypothesis raised is a reasonable one by reference to the "template" found in the SoP; and
(d)proceed to consider under s. 120(1) of the VE Act whether I am satisfied beyond reasonable doubt that the incapacity did not arise from a war-caused injury.
Hypothesis
Mr De La Rue's evidence was that prior to his tour in South Vietnam between 1970 and 1971, he smoked cigarettes at the rate of about 10 to 15 cigarettes per day. He testified that his smoking increased to about 30 cigarettes per day in Vietnam as a result of stressors to which he was exposed in the course of his operational tour.
Mr De La Rue said that he ceased smoking in 2003 and, as a result, suffered a significant weight gain. He attributed that weight gain to a combination of increasing his alcohol intake and the intake of what he described as snack foods, which he said were a substitute for his smoking habit.
In his written statement of evidence, Mr De La Rue said that prior to ceasing smoking in 2003 he consumed alcohol on most, but not every, day. He said that at that time, he consumed alcohol on about two evenings during the working week and on weekends but did not consume alcohol during the day between Monday to Friday. He claimed that on the weekend, he would consume about 4 to 5 bottles of wine and occasionally drink whiskey or beer. However, after ceasing smoking, he said he started to consume alcohol virtually every evening at the rate of one bottle of wine and he also started to regularly consume alcohol on at least one lunchtime during the working week. He said that on some occasions, he would consume alcohol at lunch twice per week and on those occasions would consume 2 to 3 bottles of wine. He said his intake of alcohol following cessation of smoking was about eight bottles of wine over the weekend.
Mr De La Rue also testified that he did not drink alcohol prior to his service in South Vietnam, having started drinking alcohol during his operational tour. He also said that his divorce in 1982 resulted in an increase in his alcohol consumption prior to ceasing his smoking habit. Mr De La Rue said that his consumption of alcohol at around 2003 was a fairly stable pattern of drinking for about 20 years.
According to Mr De La Rue, his current weight is about 92.5 kg. He said that before he ceased smoking he weighed approximately 86 kg which, according to him, resulted in a BMI of 28.08. He said his BMI in about 2005 was 30. He was diagnosed with type II diabetes mellitus in about 2007.
As will become apparent shortly, there is no question that obesity is a causal factor for sleep apnoea. The material before me links the cessation of Mr De La Rue's smoking with his increase in alcohol consumption and food intake resulting in obesity. His smoking, while not commenced while on operational service, according to Mr De La Rue, increased. This was due to stressors which he identified as:
(a)seeing a fellow soldier suffer serious burns to his face after throwing petrol on a fire;
(b)observing a truck reversing over a cyclist;
(c)seeing a truck damaged by a mine explosion; and
(d)seeing the bodies of Australian soldiers shot by an Australian servicemen in the Sergeants’ mess.
In my opinion, the material before me does establish a hypothesis said to establish Mr
De La Rue's operational service with his claim for sleep apnoea.
As Toohey J explained in Law v Repatriation Commission (1980) 29 ALR 64, while the expression has arisen out of or is attributable to requires some causal relationship between the injury and operational service, the relationship is not as direct as the expression caused by might require. He referred to the decision of the High Court of Australia in Government Insurance Office of NSW v R J Green and Lloyd Pty Ltd (1966) 114 CLR 437, where Barwick CJ said, at 443:
Bearing in mind the general purpose of the Act I think the expression "arising out of" must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle than is required to satisfy the words "caused by". …
Toohey J also referred to the decision of Donaldson J in Walsh v Rother District Council [1978] 1 ALL ER 510. Regarding the expression attributable to, Donaldson J said, at 514:
… these are plain English words involving some causal connection between the loss of employment and that to which the loss is said to be attributable. However, this connection need not be that of a sole, dominant, direct or proximate cause and effect. A contributory causal connection is quite sufficient.
Toohey J said, in relation to the Repatriation Act 1920, at 72:
In my view, para (b) of s 101(1) requires no more than that the death of a member of the Forces have some causal connection with his war service.
Mr De La Rue's hypothesis appears to raise an indirect link between his operational service and sleep apnoea, which he claims resulted from ceasing smoking and increasing alcohol and food intake; the smoking and alcohol intake being linked to stressors he encountered in the course of his operational service.
Statement of principles
There is in force a SoP (Instrument No. 13 of 2005) determined by the RMA pursuant to s. 196B(2) concerning sleep apnoea. It came into effect on 13 April 2005 and remains in effect.
Is the hypothesis reasonable
To be regarded as reasonable, the hypothesis must contain one or more of the factors which the RMA has determined to be the minimum which must exist and be related to the person's service. Mr De La Rue relies on factor 5(b) of the SoP. It provides:
(b) being obese at the time of the clinical onset of sleep apnoea; or…
Furthermore, logically, the factors which Mr De La Rue relies on to establish that being obese was related to his operational service, must equally be connected to his operational service. As the Full Court of the Federal Court (Branson, Sundberg and Kenny JJ) explained in McKenna v Repatriation Commission (1999) 86 FCR 144, at 151:
In our view, for either of the hypotheses to be upheld by a Statement of Principles, as required by s 120A(3) of the Act, each of its sub-hypotheses would have to be so upheld. A complex hypothesis (that is, one comprising more than one element or part) can be no stronger than each of its elements or parts.
The sub-hypothesis in this case appears to be Mr De La Rue's smoking habit, the cessation of which resulted in increased food and alcohol intake. However, it appears that there is some confusion about Mr De La Rue's cessation of smoking as a factor connected with his operational service. While much of the evidence in this case was taken up with the stressors Mr De La Rue claimed he experienced while on operational service, and that those stressors led to him increasing his level of smoking and his alcohol intake, no connection was made between those stressors and Mr De La Rue ceasing smoking. His obesity did not arise out of smoking; it arose following his cessation of the smoking habit.
In fact Ms Ryan, in her closing submissions, said that his obesity arose out of his operational service which caused him to increase his levels of smoking and his alcohol consumption. She also submitted that Mr De La Rue's smoking level never reduced to his pre-operational service level prior to ceasing altogether. With respect to Ms Ryan, that appears to conflate the cause of increased smoking and increased alcohol consumption with cessation of smoking and increased food and alcohol consumption. Mr De La Rue's evidence in his written statement was that prior to his operational service, he smoked at the rate of about 10 to 15 cigarettes per day. Therefore, logically, he did not acquire a smoking habit as a consequence of his operational service. Regardless, it appears that a connection is made, or it is attempted to be made, between his smoking habit, its cessation and operational service. Having established a smoking habit prior to operational service, there is nothing in the material before me which might explain why cessation of smoking after an increase in the intake of tobacco is any different to ceasing the smoking habit after consuming, on a daily basis, tobacco at a lower level. It is the cessation of the smoking habit which is said to be causal as far as his obesity claim is concerned.
It appears to me that Mr De La Rue relied on the fact that the VRB had previously accepted diabetes mellitus and hypertension as war-caused. Smoking tobacco and being overweight are causally connected to these diseases. While the causal connection need not be direct or proximate, there nevertheless needs to be a connection. That is, a connection between the cessation of smoking tobacco and its resultant effects on
Mr De La Rue. Furthermore, I am required to make my decision on the material put before me at the hearing of this matter (see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, at 68).
As the Full Court said in McKenna's case, a complex hypothesis can be no stronger than each of its elements or parts. Because there was no material at all before me disclosing a connection between Mr De La Rue's cessation of smoking and his operational service, I find that the hypothesis put forward by Mr De La Rue connecting his operational service with the cessation of smoking and the subsequent increase in alcohol and food intake is not reasonable.
However, in the event that I am wrong about whether there exists a reasonable hypothesis, I will proceed to examine the matters set out in the fourth step in Deledio on the basis that the stressors Mr De La Rue said he experienced while on operational service were linked to those factors he claimed resulted in his obesity, namely, alcohol abuse and smoking.
Was Mr De La Rue's sleep apnoea war-caused
As I have said on previous occasions, it is important to bear in mind that a hypothesis is merely a proposition made as a basis for reasoning without the presumption of its truth. Nevertheless, a hypothesis must have a sound basis. As the High Court of Australia (Mason CJ, Deane and McHugh JJ) said in Bushell v Repatriation Commission (1992) 175 CLR 408 at 412: there is no presumption that the injury, disease or death of the veteran was war-caused: s. 120 (5). The Court pointed out that the purpose of s. 120(3) is to ensure that a claim to which s. 120 applies is not met unless there is some material which raises a reasonable hypothesis.
Section 120(1) of the VE Act provides:
(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-cause 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.
After determining whether a hypothesis raised by a veteran is reasonable, the claim must then be dealt with in accordance with s. 120(1) of the VE Act. It is only then that I should embark upon a fact-finding exercise. As the High Court said in Bushell at 416:
The Commission will be satisfied beyond reasonable doubt "that there is no sufficient ground for making [the] determination" if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination… Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with the operational service, it seems convenient simply to treat the case as governed by the application of s. 120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist (16).
This final step in the process of analysis was also dealt with by the High Court (Mason CJ, Gaudron and McHugh JJ) in Byrnes v Repatriation Commission (1993) 177 CLR 564, where the plurality said, at 570:
Once a reasonable hypothesis is raised, the question for the Commission is then whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury was war-caused. The Commission will be so satisfied if it is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved (10), either by proof beyond reasonable doubt that a fact or fact relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis (11).
It is clear from factor 5(b) of the SoP dealing with sleep apnoea that the person must be obese at the time of the clinical onset of the sleep apnoea. The expression being obese is defined under Clause 8 of the SoP as:
"being obese" means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of thirty or greater.…
The fact of being obese must be related to the relevant service rendered by the person (Clause 4 of the SoP).
There seems to be no issue about the fact that Mr De La Rue had a BMI which exceeded 30 at the time he was diagnosed with sleep apnoea in 2010. A medical report dealing with obesity completed by Dr Reid on 21 May 2011 discloses a BMI of between 31.3 and 32.4 between 27 June 2009 and 21 May 2011. As to the cause of Mr De La Rue's obesity, Dr Reid wrote: alcohol lack of exercise.
Mr De La Rue's medical examination upon entry into the army recorded his weight at 134 lbs or 60.78 kg. By my calculation, that results in a BMI of 20.8. His discharge medical records of weight of 145 lbs or 65.77 kg. That results in a BMI of 22.5.
Mr De La Rue obviously had a significant weight gain (5 kg) over a period of two years. As Mr K Rudge, who appeared on behalf of the Repatriation Commission, submitted,
Mr De La Rue began to put on weight a long time before he said he ceased smoking.
Alcohol consumption
Mr De La Rue's evidence regarding alcohol consumption was significantly contradictory. In the evidence given in his written statement, Mr De La Rue said: I didn’t drink alcohol prior to Vietnam. I first started drinking during my tour in Vietnam and gradually increased my consumption over the years. The VRB in its decision dated 23 August 1996, following Mr De La Rue's claim for a pension based on malignant neoplasm of the colon and posttraumatic stress disorder, referred to stressful events described by
Mr De La Rue while in South Vietnam. The VRB said: Such events caused the veteran to use alcohol and tobacco by way of self-medication and he reported having had a regular consumption of at least 10 cans of full strength beer per day, in addition to spirits, usually rum. The veteran still drinks on a daily basis and has done so continuously since his Vietnam service.
In fact, in the claim form which he lodged with Veterans' Affairs on 28 July 1995,
Mr De La Rue, when describing the cause of his claimed alcohol abuse said: I took up alcohol consumption in SVN (South Vietnam) to ease my anxieties and peer group pressure. Furthermore, in an application lodged by Mr De La Rue on 16 December 2005 claiming alcohol dependence, he said, after stating he experienced many severe stresses which left him anxious and depressed: I used alcohol to get some peace of mind but the problem remained with me after discharge to this day. In an alcohol questionnaire which Mr De La Rue completed on 22 February 1996 he said: I was extremely tense and uptight when driving throughout the province which was occupied by the VC. Alcohol (and cigarettes) seem to give me a lot of relief. The alcohol drinking was also a peer group thing that we were encouraged to do by our troop supervisors. In response to a question asking whether there had been any periods when his alcohol consumption changed significantly, Mr De La Rue said: Increase in anxieties resulted in heavier alcohol drinking – I took up more spirits drinking as my tour of duty went on.
By way of contradiction, in a report prepared by Dr N W Pomorin following a consultation on 16 November 2006, Dr Pomorin said: Mr De La Rue said that he started drinking on his return to Australia after serving in Vietnam in the early 1970s. He did not drink in Vietnam. He said he was afraid of drinking because his father was a "drunk"; he was also a veteran. A medical report completed by Dr Reid on 21 May 2011 stated that the date of onset alcohol abuse or dependence was April 1971. In answer to questions raised by the VRB regarding his level of smoking after he had joined the army Mr De La Rue said: It increased more with the increase with alcohol. Alcohol and cigarettes went together. So after I had returned it probably increased pack and a half a day or so. It may still have been 15 a day in service because I wasn't drinking at all in service.
Tobacco consumption
Mr De La Rue's evidence regarding smoking suffers from similar problems. Attached to his claim lodged in 1995 was a report regarding his smoking. In answer to the question when he first started smoking cigarettes on a regular basis, Mr De La Rue responded: 1966. Given that Mr De La Rue was born in 1948, that would put his age when commencing smoking at around 18 years. That corresponds with the evidence he gave to the VRB. He indicated that he was smoking 10-15 cigarettes per day at that time. In answer to the question why he commenced smoking, he answered: habit. Mr De La Rue also noted that the amount he smoked per day changed since he first started smoking on a regular basis. He said that in 1970 he smoked 25 cigarettes per day and the reason given was that he was in a war zone. He then noted that in 1983 he changed his intake to
5 cigarettes per day and the reason given for the change was that smoking was not allowed in his office. In cross-examination Mr De La Rue said that he smoked about 20 cigarettes per day on the weekend.
Despite the answers given in his smoking questionnaire, on the claim form which was lodged on 28 July 1995 Mr De La Rue said, in response to a question which required him to provide details of any accidents, injuries or illnesses during his service: I was always tense and nervous and took up heavy smoking and alcohol use to ease the tension. My alcohol intake was often to the blackout stage. I continued to drink and smoke on R.T.A (return to Australia) and do so to this day.
In a smoking report which is dated 6 June 2011, Mr De La Rue said he first started smoking on a regular basis in 1964. In answer to the question how much he regularly smoked at that time, he answered 20-25 cigarettes per day. The reason given for starting to smoke on a regular basis was: social pressure. In answer to the question whether the amount he smoked changed since he first started smoking on a regular basis, Mr De La Rue ticked the No box. In answer to the question whether he had ever stopped smoking permanently, Mr De La Rue ticked the Yes box and stated that happened in September 2003.
In answer to a question by the VRB regarding his smoking, Mr De La Rue said: Oh, it just increased, as I said, from then on up to about 30 a day, and that continued – I noticed that continue till I gave up smoking, and I just did that on cold turkey. When asked when he stopped smoking, he said: I see the application says 2006, but I believe it – my partner said last night it was 2003, but it's in the 2000s anyway. Mr De La Rue was then directed to his claim form where he said: I gave up cigarettes in 2006, and when it was pointed out to him that four had been changed to a six Mr De La Rue said: Yes, I think the four is probably more accurate.
Despite what Mr De La Rue had said previously about his smoking habit, in a smoking report dated 6 February 2006 in answer to the question when he started to smoke on a regular basis, Mr De La Rue said: On active service in SVN (South Vietnam) 1970/71. He then described his consumption in considerable detail noting that he commenced in South Vietnam in the first month (five cigarettes per day); in the second month (10 cigarettes per day) and in the third month onwards (30 cigarettes plus per day). In answer to the question why he started to smoke on a regular basis, Mr De La Rue said: It was a peer group pressure thing at first but as my anxieties increased so did the number of cigarettes. There was an ease of access at our boozer (very cheap). We were verbally encouraged to get together in the boozer for a drink and smoke. In answer to the question whether he had ever stopped smoking permanently, Mr De La Rue answered: No. When confronted with this document at the VRB, Mr De La Rue first suggested that the application had been withdrawn. Nevertheless, he was asked whether that was his signature on the document and he agreed it was. However, he said it was not his handwriting and that somebody else had filled the form out for him.
In his current claim form which he signed on 21 March 2011 under the section dealing with Obesity, Mr De La Rue said that he ceased smoking in 2006. When asked in cross-examination when he believed he ceased smoking Mr De La Rue said: September 2006. Despite this, in his handwritten notes Dr Walsh, who was Mr De La Rue's general practitioner prior to him seeing Dr Reid in 2009, noted in a consultation which took place on 6 February 2006 that Mr De La Rue's BMI was 30.35. That was plainly before the date on which Mr De La Rue said he stopped smoking.
Claimed stressors
Mr De La Rue claimed he experienced the four severe stressors I have referred to above in [27] while on operational service in Vietnam. As I understand Mr De La Rue's claim, he explained the increase in his smoking habit while in South Vietnam was due to those stressors. It does not explain the reasons for cessation of smoking which he claimed led to an increase in his weight. Nevertheless, in the event that the stressors are relevant, I will consider each in turn. I should also mention that in his 1995 claim for posttraumatic stress disorder, alcohol abuse and colorectal cancer, Mr De La Rue made no mention of the fourth stressor, the shooting of three men in the Sergeants’ mess by an Australian soldier, in the account he gave to Dr Pomorin.
Before examining the claimed stressors, I should also mention that Mr De La Rue was examined by Dr Pomorin, a psychiatrist, in respect of his posttraumatic stress disorder claim in 1995. In his report dated 31 July 1995 Dr Pomorin said: He (Mr De La Rue) said that he did not experience any emotional traumas during his Service in Vietnam but did develop a sense of hardness to the difficulties which he encountered around him.… Mr De La Rue denied having any re-experiencing symptoms and he does not feel that he has deliberately avoided experiences which put him in touch with past trauma. I do not think that he suffers from Posttraumatic Stress Disorder.
Mr Rudge, in cross-examination, referred Mr De La Rue to question number 16 in his 1995 application and asked why he had not referred in that application to any of the stressors he subsequently claimed he experienced in Vietnam. Mr De La Rue simply answered: it was not asked by the question. The question in fact asked for details of any accidents, injuries or illnesses suffered during service which related to his claim. However in answering that question, Mr De La Rue said that as a driver in South Vietnam he was required to transport stores, including ammunition and soldiers, to all parts of the province and that he was always tense and nervous. In fact, in answer to the question how his service caused the posttraumatic stress disability, Mr De La Rue answered: As a driver in SVN I was required to transport soldiers and stores to all areas under enemy control. He made no mention whatsoever of any of the claimed stressors.
In a subsequent report dated 23 July 1996, Dr Pomorin said that Mr De La Rue made a further appointment with him on 3 June 1996 which he attended with his ex-wife. It appears from that report that Mr De La Rue himself made that further appointment with Dr Pomorin rather than Dr Walsh, his then general practitioner. He was asked that question in cross-examination but said he could not recall.
On this occasion Dr Pomorin reported:
In the course of the consultation Mr De La Rue revealed that in fact he did experience a number of emotionally traumatic events during the course of his Service in Vietnam, namely, he was present when a fellow soldiers' face caught on fire over a camp fire. On another occasion, he witnessed a truck reversing over a Vietnamese cyclist, and yet on another occasion a truck was blown to pieces by a mine.
Mr De La Rue explained to me that he did not wish to reveal these events to me during the previous consultation almost a year earlier, because he said he did not want anyone feeling sorry for him.
Upon further enquiry I was able to obtain a history that he experienced intrusions about these events and that he also had a number of avoidance symptoms.
On the basis of this additional information, Dr Pomorin diagnosed Mr De La Rue as having posttraumatic stress disorder.
With respect to Mr De La Rue, his explanation for not revealing the stressor events which he subsequently claimed led to a diagnosis of posttraumatic stress disorder is simply illogical. The very purpose of lodging the claim was to enable him to be paid a disability pension.
In his evidence in chief, Mr De La Rue explained the first of the stressors in this way. He said that he had driven a truck out to a fire support base where he stayed overnight. In the morning, the soldiers attempted to light a fire and one of the soldiers put petrol into what he described as a baked beans can and attempted to throw it on fire. He said that the can caught in the beads that the soldier was wearing around his neck causing petrol to splash onto his face. When the petrol ignited, the soldier caught fire and he said he pushed him to the ground to extinguish the fire. He said the soldier required to be medivaced (medical evacuation) out of the fire support base. In cross-examination
Mr De La Rue was asked what injury the soldier sustained and he answered: his face was disfigured.
Mr De La Rue's evidence was corroborated, to some extent, by Col P White (retd) who commanded 85 transport platoon between February and November 1970. In a written statement Col White said he remembered a soldier burning his face. He said he was wearing "hippie beads" which were in vogue and that he attempted to throw petrol on a small cooking fire. He said the tin caught on his necklace as he threw it and the petrol splashed on his face. However, Col White also said that all of the trucks came in to Nui Dat at night. He also said that drivers would stop for lunch and that was where he understood the burning occurred. Col White did not say anything about the extent of the burns or whether a medivac was required.
The Repatriation Commission instructed a researcher, Col Peter Langford (retd), from Writeway Research Services Pty Ltd, to investigate this claim. Col Langford reported that despite extensive searching of relevant documents, he failed to locate any mention of the incident fitting Mr De La Rue's account. Col Langford also searched the Vietnam Notifiable Casualty Records (NOTICAS Records) on account of Mr De La Rue's evidence that the injured soldier required medivac assistance. Col Langford said:
It was a matter of professional judgement whether a NOTICAS would be raised and would depend on the seriousness of the injury. In this case Mr De La Rue claims that the burnt soldier was evacuated to a nearby hospital and later evacuated to Australia. In that case there is no doubt that in NOTICAS would have been raised.
Col Langford was unable to find a NOTICAS record over the period when Mr De La Rue was in Vietnam which related to burns. He located other burns incidents but none of which related to members of 85 transport platoon. Col Langford also said that research of the War Diaries failed to identify the incident described by Mr De La Rue.
While it is not possible to make a finding beyond reasonable doubt that this incident did not occur, a question clearly remains as to its seriousness and, if Mr De La Rue witnessed that event, the effect it had on him. In his evidence in chief, he said this of his reaction: I was upset. That response does not indicate to me that Mr De La Rue found this a particularly stressful event. It certainly does not fall within the description a severe traumatic event as that expression is used in a number of SoPs.
While I am mindful of the fact that there is no SoP concerning obesity, as I understood Mr De La Rue's case, he relied on the fact that he was smoking cigarettes and drinking alcohol while in South Vietnam in order to alleviate the stress and anxiety he felt as a consequence of the incidents to which he has referred. There is a SoP concerning alcohol dependence and alcohol abuse (Instrument No. 1 of 2009). It, like a number of other SoPs, refers to category 1A stressors and category 1B stressors. These terms are defined in the following way:
"a category 1A stressor" means one or more the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured
"a category 1B stressor" means one of the following severe traumatic events:
(a)being an eyewitness to a person being killed or critically injured;
(b)viewing corpses or critically injured casualties as an eyewitness;
(c)being an eyewitness to atrocities inflicted on another person or persons;
(d)killing or maiming a person; or
(e)being an eyewitness to all participating in, the clearance of critically injured casualties
Clearly, the incident concerning the soldier burning his face with petrol does not fall within the description of a category 1A stressor. In fact, in my opinion, it also does not fall within the description of a category 1B stressor. The word critical is defined in Dorland's Illustrated Medical Dictionary (27th ed), as: pertaining to or the nature of a crisis; in danger of death…. Chambers 21st Century Dictionary defines critical as: 6 said of a patient: so ill or seriously injured as to be at risk of dying.The evidence does not permit a finding that the soldier was critically injured.
The second incident referred to by Mr De La Rue was where he said he observed a truck reversing over a cyclist. In his evidence in chief he described that he was about 100 m away when he saw the truck reverse over the cyclist. He said the cyclist was not injured but he didn't know that at the time and thought the truck had driven over him. He only became aware that the cyclist was uninjured when he got out from under the truck. Nevertheless, he said he thought the cyclist had been killed and he described his feelings at that time as anxious.
However, the description of that incident which Mr De La Rue gave to Dr Reid which is recorded in his clinical notes is significantly different. Dr Reid wrote: He was one who drove the truck over Viet cyclist.
Col Langford, in the course of his research, uncovered a report of an accident between a truck and a motorcyclist. In fact, Mr De La Rue was the driver of the truck. The report stated:
At 1415 hours on 30 September 1970 on Route 2 in Baria a motorcycle ridden by an ARVN soldier ran into the rear of a 5 ton dump truck driven by PTE R. De La Rue. The truck had reversed a few yards in order to drive around a stationary vehicle. The investigating MP found that at the time of the collision the truck was stationary and that the motorcycle was travelling too fast and had no brakes. The ARVN soldier ended up underneath the rear of the truck but was not run over. He suffered a bruised left thigh.
When this report was put to Mr De La Rue in cross-examination and it was suggested to him that this incident was similar, Mr De La Rue said he did not know what the report was referring to. When he was asked directly whether this was the incident to which he had referred, Mr De La Rue said: no.
With respect to Mr De La Rue, given the inaccuracies in his recall as is evidenced by the material I have examined regarding his smoking and alcohol consumption, I cannot accept his version of the events described as backing the truck over a cyclist. I find that the report uncovered by Col Langford accurately sets out the details of the incident which Mr De La Rue described as backing over a cyclist. It is a report prepared by the Military Police following the report of the accident. It is objective and contemporaneous. I have no reason at all to doubt its accuracy. Accordingly, I find that the evidence discloses beyond reasonable doubt that this incident, as described by Mr De La Rue, did not occur.
The third incident described by Mr De La Rue was seeing a truck damaged by a mine explosion. He thought the driver had been killed. He did not, in his evidence in chief, describe his reaction to seeing that truck other than the fact that he thought the driver had been killed.
Mr Stanley Drummond, who served with Mr De La Rue in the army in Vietnam, provided a written statement to which was attached a copy of two photographs showing a damaged truck. Mr Drummond testified that in December 1970 he witnessed a recovery vehicle towing a truck which had been damaged by an explosion. He believed the truck had detonated a mine. He said his recollection was that Mr De La Rue was in the same convoy when he witnessed the damaged truck being towed to base. In cross-examination Mr Drummond was asked if he knew whether the driver of the truck was injured and
Mr Drummond responded by saying that he had enquired and he believed that although the driver was seriously injured, he was not killed.
In the course of his research Col Langford came across a report of a mine incident where an Australian truck was destroyed. This occurred in the 1 ATF areas of operations. The report stated:
On 12 December 1970 a 5 ton dump truck from 17 Constr Sqn detonated an anti tank mine containing 20 lbs of explosive at map reference YS457880 on Route 2 north Xa Cam My. The mine had been emplaced 3 feet from the road edge and 6 inches below the surface. The large explosion caused extensive damage to the vehicle with the driver 2792325 SPR P. W. Bates sustaining multiple abrasions, lacerations to right elbow and a ruptured left eardrum (see photo below) [the photograph in the report appears to be identical with the photographs taken by Mr Drummond].
With respect to Mr De La Rue, this claimed stressor cannot be described as a traumatic event. It does not fit the description of a category 1A or a 1B stressor. He did not witness the explosion or see the injured driver.
The final incident referred to by Mr De La Rue was the fatal shooting of two sergeants and the wounding of a third on Christmas Day 1970. The shooting took place in the Sergeants’ mess. The soldier who carried out the shooting was Private Paul Raymond Ferriday who was with 176 AD Company. Although Mr De La Rue told Dr Pomorin about the first three stressors to which I have referred above, he did not mention being in the vicinity of where the Ferriday shooting took place or that he had contact with Ferriday shortly prior to the shooting.
In his evidence in chief Mr De La Rue said that he spoke with Ferriday in the NCO boozer although he had never met him before. He said someone mentioned to him that sergeants had been giving him a hard time in Australia and again in Vietnam and he said he told Ferriday to report it. He said Ferriday appeared to accept what he said and then he went to his lines. Mr De La Rue then said he heard the shots some 10 or 15 min after he spoke with him. At that time he said he was in the NCO boozer which was some 40 m from the tent line and another 30 m from the Sergeants’ mess. It is unclear why he referred to the NCO boozer when Mr De La Rue was a private and so was Ferriday. As such, I am aware from my own experience in the Royal Australian Air Force over some 12 years, that neither would ordinarily be permitted to drink in the NCO boozer. He then said he went to the tents where the shots came from and he could see bodies lying on the ground in the Sergeants' mess, which was open-sided. He said at that time others had control of Ferriday. He described it as a shocking sight.
In cross-examination Mr De La Rue was asked why, some 18 years after he told
Dr Pomorin about the first three stressful events to which I have referred above, he now brought up the Ferriday shootings. Mr De La Rue simply said: because it came back to me. This was despite the fact that when asked at the VRB hearing about the trauma and stresses he experienced in Vietnam, Mr De La Rue referred to the two standout things and went on to describe the shootings in the Sergeants’ mess on Christmas Day in 1970.
Col Langford's research disclosed a number of reports dealing with this incident. He described it as one of the most publicised criminal acts committed by an Australian soldier during the Vietnam War. It described Private Ferriday, a soldier from 176 Air Despatch Company, while under the influence of alcohol, taking a loaded 7.62 mm SLR rifle from a tent and firing three shots into the Sergeants’ mess which resulted in two fatalities and in one serious wounding.
Col Langford said that Capt R Anderson of the AFV Provost Unit conducted the formal investigation into the shootings. Col Langford interviewed Capt Anderson by telephone and was told that the military police were on the scene within 5-10 minutes of the shooting and established a cordon around the crime scene. Capt Anderson believed the casualties had been evacuated before the arrival of the military police. He also referred to a number of previous reports provided by Capt J Collin who was the Officer Commanding the Nui Dat detachment of the AFV Provost Unit. Capt Collin attended the crime scene following the incident. He was of the view that only those persons identified by name in sworn witness statements were present in the mess at the time of the shootings, who witnessed the shootings, or who visited the murder scene or its proximity in the aftermath of the killings. He set out the names and details of all of those persons and their location at the time of or shortly after the shooting took place. Mr De La Rue's name does not appear in those lists.
Col Langford also examined the HQ AFV Summary of Evidence prepared for the General Court Martial of Private Ferriday. He said the witness statements disclosed that the ORs (Other Ranks) Canteen was immediately closed and the soldiers ordered to return to their tent lines. They were prevented from approaching the Sergeants’ mess.
I also had in evidence a statement made by Mr Rex James Anderson. He was appointed as the senior investigator and officer in charge of the investigation into the incident.
Mr Anderson said that he believed that all relevant witnesses were interviewed and statements obtained. He also said that he did not have any memory of the information given by Mr De La Rue that he had spoken to and observed Ferriday 10 min prior to the incident. He said that if that information was provided to any of the investigators, it would have been recorded and he would have been called as a witness.
In his examination in chief Mr Anderson was told what Mr De La Rue said about the incident and the fact that he spoke with Ferriday shortly before the shooting. When it was put to him that no witness statement was taken from Mr De La Rue and he gave no evidence, Mr Anderson said that if he had information like that it would have been produced because it was very important information. He was asked if he could have missed this witness and he said he certainly did not think that happened and that all persons that had anything to do with the incident were interviewed.
Mr Drummond also gave evidence about this incident. In his written statement,
Mr Drummond said that he recalled prior to the shooting, Ferriday was upset and making threats at lunchtime in the mess hut and a group of men tried to calm him down. He said his recollection was that Mr De La Rue was in that group of men who were trying to pacify Ferriday. He then said: soon afterwards Ferriday went on his shooting rampage. However, even that statement contains a serious anomaly. The shooting took place at about 7:30 PM, considerably after lunch. Mr De La Rue said he spoke with Ferriday some 10 min prior to the shooting. When asked in his examination in chief whether he saw a group of men attempting to pacify Ferriday, he said: they went there from what I heard. When Mr Drummond was asked whether he saw Ferriday in the boozer, he answered: no. In cross-examination Mr Drummond confirmed that both he and Mr De La Rue knew Ferriday. When it was put to him that Mr De La Rue said he did not know him prior to the claimed conversation, Mr Drummond said: I just thought he would have known him. When asked in cross-examination whether he was questioned about the incident by the Military Police, he answered he was not.
In my opinion, Mr De La Rue's evidence regarding his involvement in the Ferriday shootings is wholly unreliable. The objective evidence regarding this incident and the extensive reporting and investigation which took place would have identified Mr De La Rue as a witness whose evidence could have assisted the investigation. The fact that he was not called to give any evidence weighs heavily against his claim that he spoke with Ferriday before the incident or that he witnessed the bodies lying in the Sergeants’ mess. There is also the unsatisfactory explanation Mr De La Rue gave for not disclosing this incident to Dr Pomorin in 1995 but subsequently, some 18 years later, having a very clear recollection of what occurred. Of the four incidents to which he has referred for the purposes of this claim, this is surely the most significant where he claimed to have seen the bodies of soldiers who had been shot. He even referred to this incident as being one of two which he described as most significant. It is simply implausible that he would not have recalled this incident in 1995. In addition to that, although Mr Drummond attempted to support Mr De La Rue's account of the incident, the evidence
Mr Drummond gave was significantly at odds with what Mr De La Rue claimed occurred. For those reasons, I find that the evidence discloses beyond reasonable doubt that Mr De La Rue had no involvement in this incident.
CONCLUSION
Mr De La Rue claimed that his sleep apnoea, which was caused by his obesity, was war-caused. I have found that Mr De La Rue has sleep apnoea and that its clinical onset was in March 2010.
The foundation for Mr De La Rue's claim was that he ceased smoking in 2003 which resulted in him suffering a significant weight gain due to a combination of increased alcohol intake and the intake of snack foods which he said were a substitute for his smoking habit.
The first and obvious problem encountered by Mr De La Rue is that he commenced the smoking habit at least two years prior to joining the army. He did not commence smoking as a consequence of his experiences while on operational service in South Vietnam. I believe it is uncontroversial to say that smoking tobacco is an addiction. Therefore, Mr De La Rue acquired his addiction in circumstances which had nothing to do with his operational service. He claimed that his level of smoking increased in South Vietnam as a consequence of a number of stressors which he experienced while on operational duty. However, his claim has nothing to do with his level of smoking. Rather, it is about the consequences he claimed followed as a result of him ceasing smoking. While Mr De La Rue claimed that his increase in alcohol consumption and food intake was directly attributable to ceasing smoking, I had no medical evidence before me which would suggest that those consequences necessarily follow the cessation of a smoking habit. I was simply asked to accept that has a known fact. Despite that, and mindful of the beneficial nature of the legislation involved in repatriation matters, I have found that the material before me does raise a hypothesis linking his operational service with his weight gain. That was because the material disclosed that his smoking and alcohol intake was linked to the stressors he claimed he encountered in the course of his operational service.
There is a current SoP in force regarding sleep apnoea. One of the factors which must be present in order to link sleep apnoea with the service of a veteran is that the veteran was obese at the time of clinical onset of sleep apnoea. I have found that Mr De La Rue was obese because his BMI exceeded 30 at the time of clinical onset of sleep apnoea. However, for his hypothesis to be reasonable, the cause of his obesity must be connected to his operational service.
However, Mr De La Rue's evidence was that he commenced smoking before joining the army. Therefore, his addiction to nicotine arose prior to his operational service and was not in any way connected to it save for perhaps his increased consumption of tobacco. There was no material before me disclosing a connection between Mr De La Rue's cessation of smoking and his operational service. It is the cessation which it is claimed caused his obesity, not the fact that he had a smoking habit. Therefore, I have found that the hypothesis put forward by Mr De La Rue connecting his operational service with the cessation of smoking which led to an increase in his alcohol and food intake is not reasonable.
In the event that I am wrong about the reasonableness of Mr De La Rue's hypothesis, I have gone on to examine the stressors Mr De La Rue claimed caused his smoking levels to increase and also resulted in excessive alcohol consumption.
The first evidentiary problem which I encountered was Mr De La Rue's claim regarding alcohol consumption. There was evidence that Mr De La Rue consumed substantial quantities of alcohol as a result of anxieties and peer group pressure while in Vietnam. On the other hand, there was evidence that Mr De La Rue did not drink alcohol at all in Vietnam and that his drinking commenced on his return to Australia. I encountered the same problem with his reported levels of smoking. There was substantial evidence indicating Mr De La Rue commenced smoking when he was either 16 or 18 years of age, some years before joining the army. There was also evidence given by Mr De La Rue which claimed he started to smoke on a regular basis while on active service in Vietnam. The evidence why he smoked in Vietnam and consumed alcohol in Vietnam was also contradictory. In some evidence he said it was a peer pressure thing and the encouragement to go to the boozer for a drink and smoke. In other evidence he said he was always tense and nervous and took up heavy smoking and alcohol use to ease his tension.
His evidence regarding cessation of smoking was also contradictory. There was evidence that he ceased smoking permanently in 2003 and there was other evidence in which Mr De La Rue said he ceased smoking in September 2006. If in fact 2006 was the correct date, because Mr De La Rue's BMI in February 2006 was 30.35, that evidence destroys the link between his obesity and cessation of smoking. In fact the evidence of Mr De La Rue's weight gain shows that while in the army, when he was still smoking, he gained
5 kgs in two years. It appears that rate of weight gain persisted for some time after
Mr De La Rue was discharged from the army. That evidence also destroys the connection between the cessation of smoking and weight gain.
In any event, I have also examined the claimed stressors which Mr De La Rue said he experienced while on operational service in Vietnam. Once again, there were serious problems with the evidence regarding the traumatic events Mr De La Rue claimed he experienced in Vietnam. In fact, I found his evidence wholly unreliable and, at times, simply implausible. This is despite the fact that Mr De La Rue has accepted conditions of PTSD and alcohol abuse disorder. I have found that the incident Mr De La Rue claimed occurred when the soldier spilt petrol over his face which then caught fire could not be described as a traumatic event. In fact, his own evidence was that his reaction to that event was that he was upset. I have found that the claimed incident about observing a truck reversing over a cyclist was simply an embellishment of what occurred at one time when a motorcyclist collided with a truck which he was driving. The soldier suffered minor injuries and, given that the incident occurred behind Mr De La Rue, he could not possibly have observed it. The third claimed stressor, being the truck damaged by the mine, is again an embellishment of an event which in fact took place and which caused some injuries to the driver but certainly not serious injury or death as claimed by Mr De La Rue. I have found this incident did not fit the description of a category 1A or 1B stressor. As to the most serious of the incidents described by Mr De La Rue, that being the Ferriday shooting of three sergeants on Christmas Day in 1970, I have found that the evidence disclosed beyond reasonable doubt that he had no involvement in that incident.
For the reasons I have stated above, I find that the decision made by the VRB on
20 March 2012 denying Mr De La Rue's claim regarding sleep apnoea and obesity was correct. I affirm that decision.
I certify that the preceding 100 (one-hundred) paragraphs are a true copy of the reasons for the decision herein of Senior Member Egon Fice .....[sgd]...................................................................
Associate
Dated 5 July 2013
Dates of hearing 2-3 April 2013 Counsel for the Applicant Ms F Ryan Solicitors for the Applicant Williams Winter Advocate for the Respondent Mr K Rudge Solicitors for the Respondent Department of Veterans' Affairs
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